There is nothing so ridiculous but some philosopher has said it. - Cicero
Philosophers debate the morality of lying. Saint Augustine, a philosopher, theologian and central figure in the development of Western Christianity stated,
Death kills but the body, but a lie loses eternal life for the soul. To lie to save a life of another is a foolish bargain.
Clearly, His Sainthood was never a crisis-hostage negotiator. The rigid rejection of all lies is also a cornerstone of Kantian moral philosophy. With less specificity, Ayn Rand philosophized,
Any compromise between good and evil only hurts the good and helps the evil
We need philosophers. Life is, amongst other things, sublime. It behooves our species for some of us to strive
to understand how things in the broadest possible sense of the term hang together in the broadest possible sense of the term. - Wilfred Sellars (See citations below to a fraction of the philosophical debate on police deception.)
But philosophers don't live in the arena. Warriors do. Law enforcement warriors shoulder the deals society and its policy makers cut but don't have the heart and stomach to deliver.
This is the 7th in a series of articles on police use of deception. Web links to the previous articles are listed below. We've looked at court decisions authorizing police use of deception. The decisions vary but none take the absolutist position of some philosophers that no deception is permissible. Nor do they limit the use of deception to urgent situations of life and death, as do other philosophers.
The ends justifies the means deal
I've previously opined that law enforcement fails to properly prepare officers for the complicated and critical decisions involved in whether and how to use police deception. These decisions can hold in the balance:
- The release of a violent offender because evidence was illegally obtained and subsequently suppressed.
- Public trust and confidence in the police.
- The reputation of the entire department.
- The career of the individual officer.
- The long-term psychological effects of practicing deception.
There's something else we don't address very well. A basic tenet of police ethics is that the ends do not justify the means. When it comes to police deception - society has struck a bargain that the ends of detecting and convicting criminals do justify the normally unethical means of lying. This ends justifies means bargain has the imprimatur of our vaulted, black-robed, Constitution guarding judiciary. As a criminal defense attorney notes,
Courts do understand that in the real word, a world in which crime loves darkness, stealth, and concealment, crime can sometimes only be detected and prosecuted through (trick, deception and artifice.).
(See web link to J.D. Obenberger's article.)
Society expects and sanctions cops using deception - within constitutional parameters - to fight crime. We don't prepare recruits, rookies and officers for this paradox.
The deal has a hole card
We've also discussed how officers can follow the law and still end up scapegoated by the media, the public and their own agencies if such deception is viewed unfavorably by the same people who have struck the bargain. Unfavorable views occur when the legal deception is used with someone who turns out not to be guilty. This is the hole card the police can't see in the early stages of an investigation.
So, legal guidelines are only part of the equation in deciding when and how to use police deception. Police must also consider ethical guidelines, which may require more than Constitutional minimums. As in poker, they must consider all the possibilities and consequences of hole cards.
Questions to ask and answer before lying for justice
In his article The Dirty Harry Problem, (web link below) Carl Klockars suggests 3 considerations for deciding,
When and to what extent does the morally good end justify an ethically, politically, or legally dangerous means for its achievement?
- How sure are you that the target is guilty?
- Are there any other means other than deception to achieve the goal?
- Is the matter serious enough to warrant such action?
Sissela Bok (citation below) recommends that before we lie we ask
Would truthfulness cause, or fail to avert, a greater harm than the deception.
We've discussed the possible consequences of police deception. Each of these and their likelihood should be elements of the police deception decision tree.
Bok also suggests a public justification test - which lies, if any, would reasonable persons consider justified. Law enforcement could pose such questions to Citizen Police Academy participants.
For crisis, life or death situations, Bok contends the following questions would meet the public justification test:
- Is the time for reflection and decision making limited thus reducing the opportunity to work out alternatives?
- Are the stakes high and is potential damage, if a lie is not told, likely irreversible?
- Will an innocent life be saved? In most minds this will offset the negative value ordinarily placed on lies.
- Is the lie intended to protect a murderer's victim? If yes, such cases are rare and not likely to encourage others to lie, or to make it more likely the officer will lie in dissimilar situations.
- If not a potential homicide, is the situation otherwise so extraordinary that it would not likely generalize the need for lying, thereby spreading deceptive practices?
While lying in crisis-hostage situations may seem a no-brainer, many respected negotiators strongly resist it - unless it becomes absolutely necessary. They have experienced first-hand how it can erode the trust necessary for future negotiations. Law enforcement then must ask whether it should be more or less restrained in using deception when the circumstances are not life or death. See, Lying during crisis negotiations: a costly means to expedient resolution, web link below.
Bok poses 3 questions for other than life-threatening situations:
- Are there truthful alternatives?
- What moral arguments can be made for and against the lie?
- What is the danger of expanding deceptive practices?
There is also philosophical support for asking whether the suspect has forfeited her right to the truth? As a former state and federal prosecutor, I would submit that not all crimes are egregious enough to support such forfeiture.
Next on www.officer.com
Next month we'll finally examine what police leaders and trainers and prosecutors should be doing (and aren't) to prepare officers for this critical minefield. If society has struck a deal that expects the police to include trickery, deceit and artifice in their fight against crime, we must prepare them to do it right. At stake if we fail are officers' careers, their departments' reputation, their communities' trust, and justice.