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October 27, 2009

Are prosecutors guilty of "moral disengagement"?

The question in the title of this post is prompted by this interesting-looking piece available via SSRN.  The article by Lawton Cummings is titled "Reconceptualizing Prosecutorial Misconduct Through Moral Disengagement Theory: A Social Cognitive Approach," and here is the abstract:

This Article argues that certain key structural factors within the prosecutorial system in the United States lead to prosecutorial misconduct by systematically encouraging 'moral disengagement' in prosecutors.  'Moral disengagement' refers to the social cognition theory developed by Albert Bandura and others, which identifies the mechanisms that operate to disengage an individual’s moral self-sanctions that would otherwise inhibit the individual from engaging in injurious conduct.  Empirical studies have shown that a person’s level of moral disengagement, as a dispositional trait, is an accurate predictor of the person’s level of aggression and anti-social behavior, and that an individual’s level of moral disengagement can be affected by the social structures within which the person operates.  Legal scholars have applied moral disengagement theory on a social systems level to identify conditions structured into the criminal justice system that encourage moral disengagement in capital juries and in mental heath professionals who are involved in capital cases.

This Article employs social cognition research on moral disengagement to argue that the criminal justice system encourages moral disengagement in prosecutors by providing moral justification for the behavior (the pursuit of justice), diffusing and displacing responsibility (through the division of the truth-finding function among multiple actors), and degrading defendants (dehumanizing them through lack of contact and derogatory labels, and blaming them for their plight).  While these moral disengagement mechanisms provide some social benefit by allowing individuals to serve as prosecutors free of inhibitory self-sanctions, they co-exist with other systemic characteristics that may act in concert with the mechanisms to produce detrimental effects.  While encouraging prosecutors to morally disengage from self-sanctions for harmful conduct towards defendants, prosecutors are afforded almost unfettered discretion in deciding who to prosecute, for what charges, whether to engage in plea discussions, and whether to seek the death penalty.  In addition, prosecutors operate in an environment where they are motivated to obtain convictions and appear 'hard on crime.' This Article argues that such conditions provide the 'perfect storm' for encouraging prosecutors to stretch the bounds of their ethical duties to defendants.

October 27, 2009 at 09:14 AM | Permalink


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Yet, if a prosecutor believes that "the pursuit of justice" requires honor on his part as part and parcel of "justice," how is he then morally disengaged?

Posted by: Mark Pickrell | Oct 27, 2009 9:41:30 AM

Prosecutors surely do hold the power! They can stack charges that they never intend to be able to prove, just so they can get a plea that is not less than the person would have gotten if he had gone to trial and lost on what he actually admits he did.
Add to that, the "feminists" and their feelings that they are being treated unfairly by a patriarchal system, and if you have a female prosecutor, who is prosecuting a male accused of domestic violence or a sexual crime, there is nothing to stop them from feeling justified in punishing males, just because they are males. Unless, they have good moral bearings, and most of the cases I've read in the past several years, nobody has very good moral bearings. They do whatever they think they can get away with.

Posted by: DLJ | Oct 27, 2009 11:24:48 AM

"Moral disengagement" gives me insight into the ramblings of SC. Both he and the "rent-seeking attorney" be they prosecutor or defense use moral disengagement to justify their positions.

Posted by: Avoidance | Oct 27, 2009 2:47:08 PM

Question: Is it "moral disengagement" to do everything you can to put back on the street a defendant you know, or have good reason to believe, is guilty, dangerous, and inclined to do it again?

Posted by: Bill Otis | Oct 27, 2009 11:05:32 PM

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