Conflict of interest and police: an unavoidable problem.
What is a Conflict of Interest?
In the introduction to Conflict of Interest in the Professions, Michael Davis provides what he terms "the standard view" of a conflict of interest:
On the standard view, P has a conflict of interest if, and only if, (1) P is in a relationship with another requiring P to exercise judgment on the other's behalf and (2) P has a (special) interest tending to interfere with the proper exercise of judgment in that relationship ... on the standard view, an interest is any influence, loyalty, concern, emotion, or other feature of a situation tending to make P's judgment (in that situation) less reliable than it would normally be, without rendering P incompetent. (2)
The fact that a conflict of interest is a tendency is extremely important. Conflicts of interest do not always affect judgment, as P may be able to exercise his or her judgment impartially despite the special interest. A conflict of interest is thus different from mere bias, though conflicts of interest and bias are often discussed together. As Davis notes, a known bias can (generally) be compensated for without difficulty, since it has a predictable effect. But conflict of interest is not bias, but is rather a tendency toward bias, which means that it is both more difficult to predict the effect of conflict of interest upon judgment, and more difficult to compensate for its effect.
One major difficulty in discussing conflicts of interest arises out of the term itself. The mere fact that two interests clash in some way, that is, that the interests are in conflict, does not mean that there is actually any conflict of interest in the technical sense of the term. My interest in spending time with my children may conflict with my interest in writing this paper, but this does not constitute a conflict of interest, for I am not required to exercise judgment on another person's behalf.
In police work most conflicts of interest involve a conflict between a role and an interest (for example, a conflict between a police officer's role as an enforcer of the law and the officer's interest in maintaining a particular friendship), or between two roles (for example, the conflict between an officer's role as a police officer and the officer's role, while off duty, as an investigative consultant) rather than a simple conflict between two interests.
It is important to remember that conflicts of interest arise only when a person is required to exercise judgment on behalf of another. If no judgment is required in a particular situation, then a conflict of interest will not pose a problem in that situation. Similarly, if I am required to exercise judgment, but only on my own behalf, and not on behalf of another person, organization, or institution, then conflicts of interest are not a problem in that situation either.
A Problem with the Standard View
The standard view appears to allow too much. Many things that we would not generally consider to be conflicts of interest seem to be conflicts of interest according to the standard view. The main difficulty here is defining the sorts of things that might count as interests that could conceivably come into conflict with the proper exercise of one's judgment. According to Davis's standard view, an interest is "any influence, loyalty, concern, emotion, or other feature of a situation tending to make P's judgment (in that situation) less reliable than it would normally be, without rendering P incompetent." (3) But this list seems to be much too broad, for there are many things that may influence P's judgment, without making P incompetent, that we would not usually consider part of a conflict of interest.
Consider the following case, based on an example given by Michael Pritchard. (4) Suppose I am driving home from work and stop at a red traffic light. The person in the car behind me has been momentarily distracted by the ringing of a mobile phone, and does not notice that the light has turned red until it is too late to avoid crashing into the back of my car. I am likely to be upset, angry with the other driver, annoyed about the inconvenience that will be caused to me while I attempt to get my car repaired, and so on. A few minutes later I arrive home, and sit down to mark a pile of students' essays. Now marking essays is an exercise of judgment, and I am required to exercise that judgment on behalf of another--in this case, on behalf of the university that offered the subject for which these essays were submitted as assessment. I am likely to be still angry about the accident, and I would suggest that this will affect my judgment, in that I am likely to be more harsh than usual in marking these essays. Yet I am not rendered incompetent. This example seems to fit Davis's standard view, yet I think few people would be willing to call this a conflict of interest.
The difficulty seems to me to be the contingent nature of the conflict. There is no inherent conflict between my anger and the exercise of sound judgment in marking. Although it may be a good idea for me to put off marking the essays until I am in a better mood, this seems to be more a question of being fair to the students than a question of conflict of interest. For something to qualify as a genuine conflict of interest, it would seem that there needs to be some direct conflict between the exercise of judgment on another's behalf, and, in Davis's terms, a particular influence, loyalty, concern, emotion, or other feature of a situation tending to make a person's judgment less reliable than normal. As Pritchard puts it, the exercise of judgment and the interest influencing that judgment must stand in some special relationship to each other--there must be an inherent conflict between them for this to really count as a conflict of interest? (5)
It has been suggested to me that even limiting the standard view of conflicts of interest in this way still leaves the definition too broad. Consider another example. (6) Suppose that we have a police officer who is receiving illicit payments from an organized crime boss. That police officer pulls over a vehicle for a traffic offense and then discovers that the vehicle is being driven by the crime boss. Does the police officer have a conflict of interest? It is certainly tempting to say that there is no conflict of interest here, that the police officer should not have been accepting the payments in the first place and that there is no question about what is the right thing for the police officer to do in this situation. A possible way to get round this problem with the standard view of conflicts of interest would be to limit oneself to only legitimate influences on judgment as part of a conflict of interest.
However, after much thought, I have come to think that such a response is too hasty. I think that the police officer in this example does face a conflict of interest, albeit an illicit one, and a conflict entirely of the officer's own making. The officer is required to exercise judgment (for officers do have discretion in how they deal with traffic offenses), the judgment is being exercised on another's behalf (in this case on behalf of the police service or of society or perhaps even of "the law"), and there is an influence upon that judgment that makes the exercise of judgment less reliable in that particular situation than it would normally be. To say that there is no question about what the officer ought to do is equivalent to dismissing the general problem of conflict of interest entirely. For one could say that in any case in which people face a conflict of interest there is no question about what they ought to do: they ought to exercise their judgment normally and act as if there were no other influence acting upon their judgment. The problem is that this is, in practice, difficult to do (for one's judgment may be affected without one even realizing it) and even if I am able to entirely exclude the influence from the exercise of judgment, it may not appear, to an impartial observer, that this is actually the case--and when the person who is exercising the judgment is in a position of public trust, appearance can be very important.
So in returning to our example of the police officer who is accepting payments from the organized crime boss, I would suggest that the officer faces a conflict of interest when he pulls that crime boss over for a traffic offense. Granted, it is a problem of his own making; granted, it is unlikely (!) that he will discuss this particular conflict of interest with a supervisory officer in order to determine the best way to resolve the conflict; but I believe that this still represents a conflict-of-interest situation, and thus the standard view requires no further modification.
To restate what we might call the revised standard view: P has a conflict of interest if and only if, (1) P is in a relationship with another requiring P to exercise judgment on the other's behalf; (2) P has a (special) interest tending to interfere with the proper exercise of judgment in that relationship (on the standard view, an interest is any influence, loyalty, concern, emotion, or other feature of a situation tending to make P's judgment [in that situation] less reliable than it would normally be, without rendering P incompetent); and (3) there is an inherent, rather than a merely contingent, conflict between the exercise of judgment and the influence on that judgment.
How do Conflicts of Interest Arise in Police Work?
Conflicts of interest can arise for police in a number of ways. A conflict of interest may arise through a relationship that a police officer has with someone who is involved in a police matter, as either the victim of crime, or as an alleged offender, or even as a witness. A conflict of interest can arise through the financial dealings of a police officer, through other employment that a police officer has outside of the police service, through volunteer work, through study commitments, or even through an officer's deeply held personal or religious beliefs.
Let me illustrate this with some examples:
A. Suppose a police officer is called to a domestic dispute that involves the officer's sister. Both parties to the dispute claim that the other has assaulted them. One aspect of the role of a police officer in such a situation is to impartially assess the claims of both parties and determine whether any charges should be laid. But there is a clear conflict of interest in this case, since the officer's existing relationship with her sister will tend to influence that officer's ability to act impartially.
B. Suppose a police officer is a financial partner in a restaurant located within the officer's patrol area. Strict parking regulations apply in the area near the restaurant, so many of the restaurant's patrons park illegally. Part of the officer's role is to issue tickets to illegally parked cars, but if patrons of the restaurant are ticketed they are unlikely to return, which may have a severe effect on the profitability of the restaurant. In this case, the officer's financial interests are the cause of a conflict of interest.
C. Suppose a police officer is engaged in secondary employment as a bartender at a pub that is well-known for its generous support of community organizations and also for exceptionally good treatment of its employees. The publican is, understandably, extremely well-liked and respected in the local community. This off-duty officer has noticed that the publican's underage son, and a number of the son's friends (all also underage), are regularly served alcohol in the main bar by the publican. In this case, the conflict of interest for the officer arises out of conflicting duties to the officer's two employers.
These examples illustrate different types of conflicts of interest that may arise for police officers in the course of their work--all involve officers exercising their judgment on behalf of another (at least in some sense), all involve an interest that will tend to interfere with the proper exercise of that judgment, and in all cases there is an inherent conflict between the exercise of judgment and the influence on that judgment.
What Problems can Conflicts of Interest Cause in Police Work?
Conflicts of interest can cause problems in policing in three main ways.
1. The exercise of good judgment is an integral part of the professional role of police, as it is for any profession. Since conflicts of interest tend to affect the judgment of those involved in the conflict, they are thus a problem for police.
2. A police officer whose judgment is clouded by a conflict of interest may be led into inappropriate or illegal conduct.
3. Even when an officer acts completely impartially, conflicts of interest tend to create the appearance of bias in an organization that ought to appear to be, (and indeed ought actually to be) strictly impartial in the discharge of its duties to the community.
Problem (3) is particularly significant, since it exists not only in all cases of actual conflict of interest, and in all cases of potential conflict of interest, but also in all cases in which there is a perceived conflict of interest, whether or not that perception is accurate. In fact, problem (3) is doubly significant, since it will apply in situations in which either (1) or (2) also applies: if an officer's judgment is actually affected due to the conflict of interest, or if an officer is led into inappropriate conduct, these things will also have the effect of creating an impression of bias (which would, in these cases, be justified).
The appearance of bias is a significant problem only for those in positions of public trust. In other situations, perception is not a significant problem. Suppose, for example, person A is not in a position of public trust, but is instead exercising judgment on behalf of another individual. This other individual, B, believes, incorrectly, that person A has a conflict of interest in dealing with a particular matter. If person B approaches A, and alleges that A had a conflict of interest in this matter, all that needs to be done to show that the judgment was not improperly influenced, is for A to demonstrate to B that there was no conflict of interest in this matter.
On the other hand, when a person is in a position of public trust, the public perception of any situation will be extremely important. It is virtually impossible to explain to all members of the public why in a particular situation in which there was a perceived conflict of interest, there was not an actual conflict of interest; thus the only realistic way to deal with perceived conflicts of interest (whether the perception is accurate or not) is to treat them as though they were actual conflicts of interest. All those within the criminal justice system are bearers of the public trust. Police are a part of the criminal justice system, and the mere appearance of bias or impropriety within this system tends to undermine public confidence in the fair administration of justice. As the old adage goes, justice must not only be done, but must be seen to be done. Thus it is important for police officers, and for all members of the criminal justice system, to learn to deal properly with conflicts of interest, whether these conflicts of interest are perceived conflicts, potential conflicts, or actual conflicts.
How Can a Conflict of Interest be Dealt with?
There are three usual methods of dealing with a conflict of interest:
1. Declare the conflict of interest.
2. Remove the conflict of interest.
3. Avoid the conflict of interest.
In police work, merely declaring the conflict of interest is rarely (if ever) going to be a final solution; the usual course of affairs would involve informing a supervisory officer of the conflict of interest, and then working with that supervisory officer to ensure that the conflict of interest is dealt with through removal of the conflict or avoidance of the conflict. An example of removing the conflict of interest might be police officers divesting themselves of the financial interests that are the cause of the conflict. An example of avoiding a conflict of interest would be a police officer distancing himself or herself from the particular matter giving rise to the conflict.
Thus police officers who realize that they may have a conflict of interest due to their financial holdings in a particular enterprise in their local police district (as in example B, mentioned earlier), ought to inform their supervisory officers of this potential conflict of interest and then take steps to remove the conflict, either through such officers divesting themselves of the financial stake in that enterprise or through transferring to another district so as to remove themselves from the potential conflict of interest.
Similarly, police officers who are called to deal with particular incidents may realize that there is the potential for a conflict of interest, and take steps to distance themselves from the incidents so as to avoid the conflict of interest. Thus were a police officer to be called to deal with a domestic disturbance at an address that she recognized as being the residence of a close relative (as in example A mentioned earlier), that police officer might inform her supervisor of the potential for a conflict of interest in that situation and request that a different officer be dispatched to the scene of the domestic disturbance.
Dealing with a conflict of interest in either of these ways, through removal of the conflict or through avoidance of the conflict, addresses all three of the problems previously mentioned: the possibility of clouded judgment, the possibility that an officer may be led into corrupt conduct, and the perception of bias.
Many police departments have recognized the problems that may be caused by conflict of interest and have introduced regulations that are designed to prevent some common conflicts of interest from arising. For example, some police departments have banned police from financial involvement in businesses within their patrol area, thus ruling out the possibility of conflicts of interest of the kind outlined in example B above. Some departments have also regulated secondary employment, either through a total ban or by a ban on employment within certain industries (such as the liquor, security, and sex industries) or by requiring police to gain approval from supervisors before undertaking any secondary employment. Such measures are designed to eliminate, or at least to minimize, the types of conflict of interest mentioned in example C.
I have suggested that, where possible, police need to avoid not only actual and potential conflicts of interest, but also perceived conflicts of interest, even where that perception is inaccurate. It should be noted that even in situations in which police officers are not required to exercise any judgment, and in which a conflict of interest cannot therefore possibly arise (since the exercise of judgment is an integral part of a conflict of interest), members of the public may still perceive a conflict of interest, due to their false beliefs about the situation. This is especially likely to be the case where the actions an officer is forced to take coincide with the actions that the officer would be likely to take were the officer acting under the influence of some bias.
Consider, for example, a modified version of case A. Suppose that an officer is called to a domestic dispute involving her sister, and it is absolutely clear in this particular situation that the sister has been assaulted by her spouse. Let us also suppose that in this jurisdiction, officers are required to make an arrest in all domestic violence situations in which there is evidence that an assault has occurred. The officer has no option but to place the sister's spouse under arrest. There is therefore no exercise of judgment in this situation and no actual conflict of interest. Yet I think it quite clear that the sister's spouse will perceive a conflict of interest in this situation-that it will appear that the officer's judgment in the situation is biased--and thus that the public trust will have been violated. Police policies regarding conflict of interest need to take situations like this into account; such policies need to deal with actual, potential, and perceived conflicts of interest if they are to be of any real value.
Although it is possible to create regulations that prevent some types of conflicts of interest from arising, other types of conflicts, like the one illustrated in example A (in both its original and modified versions), are much more difficult to prevent through simple regulation. In these types of situations, police officers are expected to deal with conflicts of interest themselves, in one of the usual ways. But what happens in situations in which a conflict of interest can be neither avoided nor removed?
Policing in Restricted Circles
The very nature of policing is such that some police officers, particularly those working in restricted circles, will be faced with conflicts of interest that cannot be dealt with by such means. These sorts of situations present an unavoidable problem for the officers involved.
D. Suppose a police officer is working alone in a small town, with a population of a few hundred people. Within a reasonably short period of time, the police officer comes to know literally everyone in town and has formed friendships with some of the residents of the town. Now suppose that one of the friends of the police officer becomes involved in an altercation in a public bar, and police attendance is required.
Such a situation perfectly fits the "revised standard view" of a conflict of interest: the police officer is required to exercise judgment in this matter, on behalf of someone else (in this case on behalf of the community), but the officer has a special interest in the situation that tends to interfere with the proper exercise of his judgment, and there is a direct relationship between the exercise of judgment and the influence upon that judgment. The conflict of interest cannot be removed, for the relationship between the police officer and the friend already exists. The conflict of interest cannot be avoided either, since police presence is required, and our officer is the only officer in town. The police officer can certainly declare the conflict of interest, but to whom should the conflict of interest be declared? There is no realistic way of declaring the conflict of interest to a supervisor and requesting the supervisor's assistance in dealing with the matter. Declaring the conflict of interest to the parties involved in the case does not seem a solution to the problem either--in all likelihood those involved already know of the friendship.
It appears that the only possible solution is for the police officer to deal with the situation despite his relationship with one of the parties involved in the dispute and for the officer to try to be as impartial as possible. Yet such a solution will run headlong into the third of the major problems that conflicts of interest can cause in policing: the appearance of bias in the judgment of one who ought to be impartial.
Consider another example.
E. Suppose that the jurisdiction with which we are dealing is somewhat larger than in example D, and that there are about twenty police officers working out of a particular station, with between five and ten officers on duty at any one time. One particular night, six officers are on duty, with two car crews of two officers each, and the remaining two officers, including the senior officer on duty, manning the police station. It is a busy night, with a reasonably large number of calls for police assistance, and the officers are kept very busy. One particular crew is called to attend a motor vehicle accident, where two cars have collided at a major intersection. No one has been injured, but there is substantial property damage, with both vehicles undriveable and obstructing the intersection. Upon arrival at the scene of the accident, the senior officer in the car realizes that the driver of one of the vehicles is his mother-in-law. He immediately informs both the other officer present and the senior officer on duty of the conflict of interest. Unfortunately, the other car crew is involved in dealing with another case, an attempted sexual assault, and neither of the other officers on duty can leave the station.
How can a conflict of interest such as this be dealt with? The other officer present at the scene of the accident can take the primary role in dealing with the incident, but this is at best only a partial solution, for both officers will have to be involved in dealing with such a situation. The mere presence at the accident of the officer with the conflict of interest is likely to have an effect on how the incident is handled, and if/when the driver of the other vehicle becomes aware of the relationship, the problem of apparent bias will again become an issue.
The examples that I have just given are not unrealistic; in fact, the first example (D) is quite common in many jurisdictions around the world. The police in both of these cases are faced with a conflict of interest that can be declared, but not removed or avoided. Such cases are not uncommon in situations in which police are working in restricted circles, as in small towns or villages, in small police departments, in small specialized units (such as gaming, liquor licensing or vice squads) or even on night shifts in major cities. When the pool of available police is small, it often becomes very difficult for a police officer to hand over to other officers jobs that involve the officer in a conflict of interest. Thus the conflicts of interest become unavoidable. The only option in such situations is to disclose the conflict of interest, but as I shall demonstrate, this is not a solution for a conflict of interest in policing.
In many professions, recognizing the existence of a conflict of interest and declaring that conflict of interest to the relevant involved parties may be sufficient to deal with the problems that the conflict of interest raises. In other professions, however, recognizing and declaring a conflict of interest is an essential first step in dealing with the conflict, but it does not actually solve the problem. So, though it may be sufficient for financial planners to disclose the nature and extent of any commission that they receive for "selling" certain financial products, it is not sufficient for judges to simply disclose that they have a conflict of interest in cases over which they are scheduled to preside. Why is this situation a particular problem for judges? As I have already mentioned, it is a problem because the very nature of the justice system requires that court proceedings are conducted in a fair and impartial manner. In fact, any perception of bias within the process is generally taken to be grounds for an appeal. (7) Not only must the scales of justice be evenly balanced, but justice herself must be blindfolded.
Police officers face many of the same conflict-of-interest problems as judges. Both police and judges are members of the criminal justice system, in which, as we have seen, the mere appearance of impropriety can be a serious problem. Both the police and the judiciary are limited in the ways in which they can deal with a conflict of interest, with avoidance of conflicts of interest the most fruitful strategy for dealing with problems.
Perhaps the biggest difference between the conflict-of-interest problems facing judges and police officers is in their relative capacities to avoid conflicts of interest. Judges usually know what cases they will preside over, and they can usually see potential conflicts of interest developing. When a conflict of interest does arise, avoidance is always a viable option, because another judge can (almost) always be found, cases can be postponed if necessary, and the courts can exercise control over the scheduling of cases to ensure that conflicts of interest are appropriately dealt with. Even in cases in which there is only a single judge or magistrate in a particular town, it is usually possible for this judge to avoid cases that will cause a conflict of interest, for such cases can be relocated to another town, under the jurisdiction of another judge, or they can be deferred until another judge is available to come to the town to preside over the case.
Police on the other hand, rarely (if ever) know in advance what problems they will have to deal with, since issues requiring police attention can arise at a moment's notice. In any case, it is rare that a conflict of interest is manifest before a police officer arrives at the scene of an incident, by which time genuine avoidance of the conflict is no longer an option. Few police matters can simply be postponed until another officer is available---most matters require at least some kind of on-the-spot solution. Police are able to exercise little control over the incidents with which they will have to deal; generally, police must simply go where and when they are called. Although it is true that in many cases more than one officer will be present, and an officer with a conflict of interest will be able to distance herself somewhat from the incident, this falls far short of real avoidance of the conflict, since the officer will still be at the scene.
Consider a parallel example of this sort, well known to members of ethics committees. Imagine that a research proposal has been submitted to the ethics committee for approval, and that one of the chief investigators of the research project (who I will call Professor X) is himself a member of the ethics committee. There is an obvious conflict of interest here, which can be dealt with only by Professor X removing himself from the discussion of the proposal. But is it appropriate for Professor X to be present while the proposal is being discussed? I would suggest that the mere presence of Professor X will have some influence on the committee, and thus Professor X should leave the room while the research project is being discussed. In a similar way, police officers who find themselves faced with a conflict of interest ought to remove themselves from the scene of the incident. But as I have already mentioned, in many cases this is not possible, and thus even though the police officer in question may allow his or her partner to take the leading role in dealing with the incident, the mere presence of the other officer is likely to have some effect on the outcome.
Some apparently unavoidable conflicts of interest can be dealt with by shifting the exercise of judgment to another officer, even in cases in which there is no other officer present at the scene. If the incident does not require an immediate discretionary decision, then it is possible for the officer at the scene, upon recognizing the conflict of interest, to defer judgment on the matter to the officer's supervisor, with the judgment to be made at a later point in time. For example, in case E, it may be possible for the officers at the scene to clear the intersection, gather information about the accident, and then to pass the information to a supervisory officer. The supervisor can then exercise her own judgment, unclouded by conflict of interest, to assess whether either of the two drivers ought to be ticketed or charged.
Unfortunately, such a solution is not always feasible, for two main reasons. In many cases, an immediate discretionary decision--an exercise of judgment--will be required. For example, the officer(s) on the scene will have to make a decision as to whether or not it is necessary to make an arrest, a decision that cannot usually be deferred until later. The other problem with an officer attempting to resolve a conflict of interest by passing the judgment on to a supervisory officer is that in many jurisdictions awareness of the problems caused by conflict of interest is low. Thus it is quite likely that the supervisory officer will fail to recognize the conflict-of-interest issues and will simply insist that the junior officer, as the officer present at the scene of the incident, ought to exercise his own judgment in the matter.
When a police officer faces a conflict of interest that cannot be avoided in any of these ways, the only available option is complete transparency so that all can see whether any bias has crept into the officer's judgment. Although officers who are involved in cases that contain unavoidable conflicts of interest cannot be blamed for their actions, since they had no choice but to be involved in the situations, such cases do still cause problems, because the existence of the conflict of interest can give the impression of bias even where no bias exists, and the impression of bias in such cases equates to an impression that the officers have violated the public trust. Such officers have done no moral wrong, for the situation was forced upon them, but they still need to be aware of the problems that may result from their unavoidable involvement.
The Uniqueness of Police Conflicts of Interest
What is so important about conflicts of interest and police? What is it about conflicts of interest involving police that makes them worth examining in such detail? It is certainly not the case that all police situations involving a conflict of interest are unable to be appropriately dealt with. Many conflict-of-interest situations can be either avoided or removed. There are other police situations that do not call for the exercise of any judgment or that allow the exercise of judgment to be deferred to another officer, thus enabling conflict-of-interest issues to be avoided. However, there will always be some situations in which police will find themselves faced with conflicts of interest that cannot be avoided and that require an on-the-spot exercise of judgment. It is these sorts of issues that make conflict of interest in policing so difficult to deal with.
I have already suggested that police are often involved in situations in which an immediate response is required. Yet there are other professions in which this is the case, for example, medicine. I have suggested that in police work there is the necessity not just for impartiality, but also for the appearance of impartiality. Yet other professions, such as the judiciary, also share this need for an appearance of impartiality. I have suggested that police belong to a profession in which there is a distinct lack of foreseeability about the emergence of conflicts of interest, and this tends to make conflicts of interest apparent only after an officer has become involved in an incident. But again, this does not set policing apart, for emergency medical practitioners can find themselves in the same position. I have suggested that there is a lack of resources available to assist police in avoiding conflicts of interest, but once again this is not unique to policing.
What is unique to the profession of policing is the type of work that police officers actually do and the means that police officers are required to use in order to carry out their duties. An extremely important part of the duty of police officers (some, such as Bittner, (8) would even say an integral part) is the capacity to use force when required. To express this idea in different terms, a police officer is sometimes duty-bound to infringe or curtail people's rights. A police officer infringes a person's rights when he places a person under arrest. An officer infringes a person's rights when she executes a search warrant, uses force, stops and searches a pedestrian on the street, stops a person's vehicle, and so on. All of these curtailments of rights will be justified and legal if officers are carrying out their duties appropriately. In some circumstances, it will even be appropriate for police officers to invade that most fundamental of rights, a person's right to life.
The fact that police are sometimes duty-bound to encroach on people's rights, up to and including the right to life, sets policing apart from any other profession. Few other professionals are faced with the duty to cause harm to others. Other professions may involve life and death matters, but these will usually involve only trying to save people's lives (as in medicine) rather than in actually causing the death of another person. While it is true that judges may be involved in trials in which death is a possible penalty for the accused, the judge will not be the one carrying out the sentence, and in fact in most jurisdictions, will not actually be the person who decides if the death penalty is to be levied against the accused, since this is usually the role of a jury. In fact, the only other professionals who are likely to be faced with a duty to cause physical harm to other people, are members of the military and prison officers.
I would suggest that members of these two professions are not likely to face situations of unavoidable conflict of interest. The role of the military is to protect the nation from external threats. Since the threats are external, there is little likelihood of an unavoidable conflict of interest arising for a member of the military during normal operations. While unavoidable conflicts of interest might easily arise if the military is being used to enforce martial law, I would argue that in such a situation the military is taking on the role of the police, and thus also taking on the inherent problems of that role.
Prison officers, like police, may often be placed in situations in which they are required to invade the rights of other people--the very nature of a prison is of course to ensure that the right to liberty of the prisoners is restricted. Prison officers may in some circumstances be duty-bound to use deadly force--for example, to prevent the escape of a prisoner. Yet though prison officers share these problems with police, it is unlikely that prison officers will be faced with an unavoidable conflict of interest when they are on duty. Since the prison system affords almost total control over the movements of the prisoners, it is relatively easy for conflicts of interest for prison officers to be avoided, once those conflicts come to light. For example, if a prison officer has a relative who is serving a custodial sentence, there would be a clear conflict of interest for the officer were that relative to be placed in the officer's care. But once this potential conflict of interest is declared, it is a relatively simple matter for the conflict to be avoided; for example, by sending the officer's relative to a different prison.
Thus it can be seen that police officers are in a unique position among the professions. No other professionals whose duty includes the infringement of the rights of others will face unavoidable conflicts of interest. No other professionals who face unavoidable conflicts of interest will be duty-bound to curtail others' rights.
If people are required, as part of their duty, to invade the rights of others, then conflicts of interest that arise in that duty will be extremely important. It is a serious enough business for a police officer to have to exercise judgment, on behalf of the community, about whether or not to infringe the fundamental rights of another person; having the additional complication of a conflict of interest, which may tend to influence the exercise of that judgment, is really asking too much of any person. Yet as I have shown, it is in the profession of policing that judgments of a most serious nature are likely to have to be made, and in which conflicts of interest are going to be, in at least some circumstances, unavoidable. It is this that makes conflicts of interest in policing so worthy of detailed examination.
[I would like to thank John Kleinig, Nikki Coleman, Andrew Alexandra, and Seumas Miller for their insightful comments on earlier versions of this paper.]
(1) Michael Davis and Andrew Stark (eds), Conflict of Interest in the Profession (New York: Oxford University Press, 2001).
(2) Michael Davis, "Introduction," Conflict of Interest in the Professions, 8-9.
(3) Davis, "Introduction," 8-9.
(4) Michael S. Pritchard, "Conflict of Interest: The Very Idea," Research Integrity 5 (2002): 6-10.
(5) Pritchard, "Conflict of Interest," 8-9.
(6) This example was suggested to me by Andrew Alexandra.
(7) It should also be noted that any perception of conflict of interest would be sufficient for a person being excused from acting as a juror on a particular case, or, if the trial has already commenced, then a juror's apparent conflict of interest would be sufficient to ensure a mistrial.
(8) Egon Bittner, "The Capacity to Use Force as the Core of the Police Role," in Moral Issues in Police Work, ed. F. Elliston and M. Feldberg (Totowa, NJ: Rowman & Allanheld, 1985), 15-26.
Stephen Coleman is a Senior Research Fellow at the Centre for Applied Philosophy and Public Ethics (a Commonwealth-funded Special Research Centre), and Senior Lecturer in the School of Policing Studies at Charles Sturt University, Australia. In January 2006, he will take up a position as Lecturer in Philosophy at the Australian Defence Force Academy in Canberra.
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|Publication:||Criminal Justice Ethics|
|Date:||Jun 22, 2005|
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