Research serves an extremely important role in the criminal justice system. The collection of data and it dissemination into information allows the criminal justice system to operate effectively and efficiently. These benefits are the result of information that allows for criminal justice leaders to build proper programs, allocate resources, and for policymaking. One of the most important areas of research related with criminal justice is ethics. Types of Criminal Justice ResearchTo understand the importance of ethics in criminal justice research it is necessary to understand the purpose of research in the field of criminal justice. Research in this field spans an enormous area connecting many different subjects within the criminal justice field such as law, forensics, and many other areas of criminal justice. Research serves the purpose of studying criminology and its functioning. For example, studies are used to research the possible causes of crime and methods for controlling it. Studies are also used to identify best practices for law enforcement to increased effectiveness or to root out problems. For instance, studies into community policing have revealed that law enforcement is more effective when there are close ties with the communities they serve (Macionis, 2011). Other purposes in research extend into reducing crime and recidivism rates. For instance, research has clearly linked prison overcrowding to zero tolerance policies (Lauren and Glaze, 2013). Using research in this manner can provide criminal justice with clear strategies, but in order for this research to be effective it needs to be ethical. The Role of EthicsCriminal justice is a field that is entrenched in ethics. At all levels of law enforcement, ethics must be followed in order to ensure that individuals are treated in accordance with their rights under the law. Criminal justice research is also bound by ethics. Researchers must be sure that research is conducted in a manner that follows sound evidence-based practices and also abides by research ethics. One of the most famous examples of criminal justice research gone wrong is the Stanford Prison Experiment. Researcher Philip Zimbardo was conducting an experiment in violent behavior and created a mock prison. Participants were chosen randomly and were assigned the roles of guards or inmates. While much information was learned from this experiment it was also deemed unethical when the participants began showing high levels of aggression:
The problem with this experiment was that it was poorly designed and while it concluded that prisons and their environments can cause increased aggression in inmates and guards; its results were also impossible to replicate since the experiment is not ethical and cannot be reproduced. There were many flaws in this experiment which ultimately made it impossible to use for policymaking or creating any form of prison program, “As well, the experiment was fraught with ethical violations from the beginning such as exposing people to maltreatment and researchers becoming too involved in the scenarios” (Macionis, 2011). Ethical research in this area would have used more quantitative or qualified approaches for data collection. Quantitative research utilizes factual data such as reviewing violent incidence reports from prisons and attempting to show correlation between numbers of incidents and population sizes (Loue, 2000). Qualitative research could also be used which might interview prison inmates and guards to determine causes of aggression (Loue, 2000). These methods of research would have provided substantially more data that was also more useful for understanding prison violence. The problem with criminal justice studies is that they are often expensive to conduct, and their results are not readily beneficial to society. This is a problem understood from the difference between pure and applied research. Most criminal justice research is pure in nature because it has no market purpose and it is studying phenomena for the sake of knowledge (Loue, 2000). In contrast to pure research, applied research is used to determine answers to specific problems or situations such as market research to determine the trends in products (Loue, 2000). As such pure research such as studying prison populations are costly and their benefit may not always be seen directly. For example, reducing crime within prisons may not have a benefit in the short term, but it may decrease recidivism in the long-term. ConclusionsCriminal justice research is necessary and important. At all levels of the criminal justice system research can be used to improved processes and efficiency. Ethics is one of the most important elements pertaining to research because it provides a map for how this research can and should be conducted. Unethical research leads to large issues such as making data unclear and providing lack of benefit. Ethical research ultimately provides the proper data and information needed by the criminal justice system in order to solve problems and improve the system. References Lauren E. Glaze, E. J. (2013). Correctional Populations in the United States, 2012. Bureau of Prisons volume 1. Loue, Sana (2000). Textbook of research ethics: theory and practice. Springer. New Jersey Macionis, J. (2011). Society: The Basics, Eleventh Edition, by. Published by Prentice Hall. by Pearson Education, Inc. Photo by Tingey Injury Law Firm on Unsplash In this section, the committee expresses its support for a broadened view of the principle of respect for persons, to consider more than a narrow focus on informed consent issues, which are still vital but not the whole picture. It also suggests a shift from a categorical approach to research review to a risk-benefit approach. In accord with its emphasis on the principle of respect for persons, the original commission’s report focused on informed consent. Although informed consent is still an ethically important means of ensuring respect for the right of persons to engage in autonomous decision making, recent scholarship has questioned the myopia caused by such a narrow focus. Kahn, Mastroianni, and Sugarman (1998) are the editors of a volume that captures a major research ethics reform agenda in its title: Beyond Consent: Seeking Justice in Research. One question the editors raise is whether research ethics has been too concerned with informed consent to the neglect of other matters. There seems to be agreement from a variety of perspectives that informed consent forms have consumed too much time and energy. Critics of the preoccupation with forms are not necessarily interested in shifting attention away from informed consent. Rather, they may emphasize that documentation should be but a part of an informed consent process that involves opportunities for questions and answers and allows time for reflection before a decision is made, and that more attention should be paid to ameliorating basic power and knowledge differentials, which may undermine information sharing, understanding, and voluntariness. One proposal for reform advises simply raising the consciousness of investigators and ancillary personnel. Another suggests the use of external measures such as third-party monitoring to guard against deficiencies. This could be accomplished by the integration of third-party research subject advocates in the informed consent process, especially for studies that are considered unusually sensitive or risky or that involve subjects with impaired autonomy (see prison research subject advocate [PRSA] discussion in Chapter 6). A more fundamental question is whether too much weight has been placed on informed consent in the framework of research ethics and research regulation. As noted previously, the National Research Act charge to the commission focused on informed consent issues, so the centrality of consent issues in the report is neither surprising nor necessarily indicative of a judgment on the part of the commissioners that the most compelling issues in research with prisoners are those of consent. An alternate perspective, discussed by Emanuel et al. (2000), focuses on directing attention to risks and to risk-benefit analysis. According to this view, only health-related benefits derived from the research can be counted as benefits to individual subjects, meaning that extraneous benefits, such as payments or medical services unrelated to the research, are excluded in this analysis. Further, although the process of weighing risks against benefits is inherently subjective, the analysis should be based on data permitting identification of the types of potential harms and benefits, their probability of occurrence, and their long-term consequences. For example, a placebo-controlled trial of new antiemetic therapy for patients undergoing chemotherapy could be rejected because the investigators failed to give adequate weight to the discomfort associated with nausea and vomiting and failed to take steps to minimize this potential harm by using available antiemetic agents in the control group (Emanuel et al., 2000). These questions about an undue focus on informed consent influence our recommendations. More attention needs to be paid to risks and risk-benefit analysis rather than the formalities of an informed consent document. The ethical risks associated with research involving prisoners cannot be solved by focusing only on the informed consent document. A risk-benefit paradigm is necessarily more flexible than the current categorical approach. Although some might view this flexibility as opening the door for potential abuses, this new approach should actually increase the protection of prisoners involved in research. This committee, like the original commission, is focused on the protection of prisoners as our core ethical concern. However, there are many approaches one can take to accomplish this goal, involving different levels of protective oversight mechanisms. One scholar outlines three types of protectionism:
The movement over time has been from weaker to stronger forms of protectionism as a means of addressing a fundamental problem, specifically, the tension between protecting the interests of subjects and promoting scientific progress. Strong protectionism sharply limits investigator discretion and demands external assurances through measures such as third-party monitors of consent, conflict-of-interest committees, and other procedures. These external assurances can be associated with costs, thus leading to an ethical critique of strong protectionism. For example, an emphasis on external assurances may weaken the sense of personal moral responsibility on the part of investigators. Similarly, rigid external assurances, like those seen in the current regulations, can direct attention away from an analysis of risks and benefits, where the key ethical issues can be found. Simultaneously, there has been a countervailing force in the march toward strong protectionism, exemplified in the push by acquired immune deficiency syndrome (AIDS) activists for greater access to clinical trials and by progressives for the inclusion of women and children in research studies. More recently, there has been a similar movement to ensure that racial and ethnic minority groups are included in research. These tendencies form one basis for a somewhat different reading of the history. This reading indicates a trend away from viewing certain types of research participation (especially clinical trials) as mostly risky or burdensome toward viewing them as mostly beneficial. This represents a change in thinking about distributive justice. The commission focused on the equitable distribution of risks and worried that prisoners would bear more than their fair share. However, an equally valid case can be made for attention to the distribution of benefits. For example, Mastroianni and Kahn (2001) wrote that, in the 1970s, federal “policies emphasized the protection of human subjects from the risks of harm in research, and justice was seen as part of this protection,” but since the early 1990s “justice as applied in research ethics has emphasized the need to ensure access to the potential benefits that research has to offer” (Mastroianni and Kahn, 2001). During the committee’s October 2005 meeting, the prisoner liaison panel spent a great deal of time debating the appropriateness of including prisoners in research, with special concerns for biomedical research. “We have 275 million people in this country. We have 2 million in prisons. What is the allure to this population, if it is not the fact that it is a controlled population?” asked Daniel Murphy, Ph.D., a former prisoner in the Federal Bureau of Prisons and now professor in the Department of Political Science and Justice Studies at Appalachian State University. In other words, why conduct studies with prisoners when there are many more people outside of prison who are potential participants? Some fundamental changes in the nature of the research conducted with human subjects provide support for this account of the recent history of research practices. For example, although the paradigmatic studies with prisoners in the period leading up to the report were studies in which investigators induced disease to learn more about it, biomedical research is more likely now to be discussed in terms of clinical trials comparing alternative beneficial treatments. The last several years have also seen the publication of studies comparing the outcome between patients who participate in clinical trials and those who receive standard care outside such trials; the results have tended to favor the former (Agrawal and Emanuel, 2003). The two accounts can be reconciled in several ways. Increased protectionism is quite visible over the past century, whereas movements demanding greater access to clinical trials are far more recent. Further, protectionism as distrust of individual investigators can coexist with a view that participation in research subject to external oversight can often offer benefits to individuals and groups. One can simultaneously believe that the piling on of more rules and oversight bodies at some point becomes counterproductive and that human subjects are presently inadequately protected. Indeed, many modern ethicists seem to hope for a reawakening of scientific conscience rather than additional fortifications to the citadel of regulations. “It is so much easier for indiscretions or bad intentions to take place behind those prison walls and razor wire. I have seen it in so many cases, where doctors who were sworn to save lives and do good have become so consumed by that intellectual scientific quest that they forget about the test subject. It is just so easy to abuse the situation,” stated Allen Hornblum, author of Acres of Skin (Hornblum, 1998) and former member of the Philadelphia Prison System Board of Trustees. This committee concurs. The critique of strong protectionism, combined with a new understanding of research as a potential benefit, requires a reexamination of the current regulations. Advances in ethical thinking about protectionism suggest a new regulatory model. In particular, the committee rejects strong protectionism because it discounts the notion that researchers can be trusted to act virtuously in the protection of subjects. Researchers have responsibility for protecting subjects in their studies, especially those who are most vulnerable. However, given the troubling history of research abuses in prisons, weak protectionism is not an option. The recommendations in this chapter, and throughout this report, reflect a moderate protectionist stance, acknowledging that robust protections are needed but that they need not be rigid or absolute. This position should not be perceived as a call for the relaxation of prison research ethics. Justice and respect for persons are as vital today as they were three decades ago; research still must be constrained by these ethical principles. The prison continues to be a setting in which it may be difficult to avoid contamination through contact with what will often be a culture of, at best, deprivation and dysfunction and, at worst, corruption, brutality, and degradation (Hornblum, 1997, 1998; Murphy, 2005; Rhodes, 2005). Perhaps some unease is appropriate about removing what prisoners themselves, given full information and understanding, might regard as acceptable or even desirable options in light of their circumstances, circumstances that are unlikely to be changed for the better by research bans. A prisoner’s ability to participate in research need not be completely precluded. The original commissioners talked to actual prisoner-subjects during a fact-finding visit to Jackson State Prison on November 14, 1975. The prison, in southern Michigan, was at the time home to one of the largest nontherapeutic biomedical research programs in the country. The report notes that commission members spoke with a representative sample of research participants and nonparticipants selected by commission staff from a master list of all prisoners and found that, overall, participants valued the opportunity to participate in research and felt they were sufficiently informed and free to enroll or withdraw at will, and nonparticipants did not object to this opportunity being available to others (NCPHSBBR, 1976). “My experience has really been that prisoners want access to innovative intervention programs. They want to change. They want to have access to the things that are going to help them, and that is one reason why people become involved, at least in working with us,” said Olga Grinstead, Ph.D., adjunct associate professor at the University of California, San Francisco’s Center for AIDS Prevention Studies, when she spoke to the committee in July 2005. She continued, “From the issue of equity or the issue of justice, there are advantages to being involved in research. We need to be aware that prisoners are motivated to be involved in research. They are motivated to give back, and that should be taken into account too.” This message continues to be articulated today. This committee visited one prison and one prison medical facility to discuss experimentation with current prisoners and peer educators (see Appendix A). The prisoners actively expressed the desire to have access to research. They stated they would feel they had a choice as to whether to participate and that they know their rights when it comes to study participation. The prisoners and peer educators at those site visits also echoed the sentiment that prisoners possess sufficient autonomy to make informed decisions about whether to participate in a given study.4 This, combined with the myopic emphasis on informed consent, is why the current categorical regulatory approach should be abandoned in favor of a risk-benefit paradigm. The following recommendations strive to acknowledge that, in limited circumstances, the potential benefit of a research protocol can justify research involving prisoners. These limited circumstances cannot be captured by a rigid categorical approach but need to be rooted in a risk-benefit analysis that grapples with the balance between a need for protection and access to potentially beneficial research protocols. Doris James, of the Bureau of Justice Statistics, added that some studies are very specific to the experiences and actions of prisoners. “Offenders are the only source of some of this data, data that are needed to provide programs, to produce policies to help meet their needs.”
The risks and benefits of human subjects research are the ethically relevant issues, not the category of the research. The current categorical approach is dependent on stipulated research categories that are subject to various interpretations. This approach does not provide sufficient or reliable protection for the human subject. In addition, the present structure does not address the actual conditions of confinement or the restrictions on liberty that attach to any prisoner (whether incarcerated or subject to restraints on liberty in connection with community-based alternatives to incarceration) who may consider becoming a research subject and for whom the regulations are intended to provide protection. A risk-based approach is preferable because it requires institutional review boards (IRBs) and the Office for Human Research Protections (OHRP) to (1) focus on the potential benefits and harms of each suggested research protocol, and (2) identify the particular ethical issues that each protocol raises in the specific context of the correctional setting. The general principle holds for all research: Ethically permissible research must offer benefits to prisoners that outweigh the risks. On the risk side of the equation, it will be important to analyze all potential risks, even something as seemingly innocuous as an interview. Certain questions can trigger harmful emotional or psychological responses; these questions cannot be allowed among prisoners unless there is an associated benefit. On the benefit side, there may be research protocols, most likely epidemiological or social/behavioral, that carry very low risks for the prisoner- subjects but no personal benefit for the subjects. Instead, the potential benefits may be for prisoners as a class (e.g., studies to identify factors that predict recidivism). Application of a risk-benefit analysis may determine that, because the risks are very low and important knowledge or benefits may accrue for prisoners as a class, the research may be considered ethically acceptable. The same may hold true for epidemiological studies (as distinct from biomedical research) that require analysis of biomedical samples, such as tissue, blood, or urine, but are not designed to assess outcomes of an intervention. The idea of benefit can be flexible enough to include minimal risk protocols where the benefit to prisoners is indirect and/or temporally distant. It will be up to IRBs to determine whether there is a convincing affirmative reason for conducting research in a prison setting. When reviewing minimal risk research that does not present a direct benefit to subjects or prisoners as a class, IRBs should consider whether the research has the potential to yield important scientific information and the extent to which that information can only be obtained in a prison setting. For example, it would be appropriate to allow a prisoners’ continued participation in a minimal risk longitudinal study (i.e., epidemiological study) that they began before being incarcerated. Such studies may not benefit either the individual prisoner or prisoners as a class, but may generate important information about the community to which the participant belonged before incarceration. This would be permissible because the subject was selected for reasons other than incarceration, and the subject’s decision to participate is unlikely to have been influenced by the pressures of prison life. However, it should be noted that the flexible notion of benefit has distinct limits. In the absence of benefit, either to the prisoner-subject or to prisoners as a class, the research should be conducted in other settings This balancing framework represents a departure from the way that decisions are currently made for approving research protocols. The present system utilizes the idea of “minimal risk” to evaluate the dangers associated with a protocol; studies are often characterized as presenting either minimal risk or more than minimal risk. The committee believes that this categorical approach is problematic and needs to be balanced with a consideration of benefit. Under a new risk-benefit framework, studies should be evaluated through a dynamic process of balancing risks and benefits, thus removing the need to rely on static definitions and categories. Nonetheless, as discussed in Chapter 6, the idea of minimal risk can be a useful tool for evaluating the risk side of a risk-benefit analysis. IRBs are accustomed to this starting point in their analyses, but should also move beyond strict reliance on this specific term in favor of a consideration of the balance between risks and benefits. Moreover, given the particularities of being a prisoner, the committee believes that the definition of “minimal risk” presently in Subpart C should be replaced by a slightly modified version of the definition, as follows:
This definition reflects the fact that prisoners are faced with a high baseline level of daily risk, thus making prison life an inappropriate reference point for determining whether a research protocol presents more than minimal risk. Guidance on biomedical research The following guidance suggests how the risk-benefit framework should be applied to biomedical research. Specific direction is being supplied for this area because of the history and controversy surrounding medical and pharmacological studies in prisons. For other types of research (i.e., epidemiological, behavioral, and so on), these very specific limitations are not relevant. There are two narrow circumstances in which biomedical research might be ethically acceptable:
Rationale This approach starts with the presumption that biomedical research should be severely restricted and is allowable only in limited circumstances. Biomedical research involving prisoners as subjects is only permitted when the potential benefit to the prisoner-participants outweighs the risk to which the subjects are exposed. Under this framework, studies that offer no benefit to potential subjects would be precluded (e.g., testing of cosmetic products).The goal of the risk-benefit analysis is to prevent prisoners from being burdened by more than their fair share of risk, while allowing access to research that has potential benefits. This is especially relevant in circumstances in which effective treatments have not been developed to address a life-threatening or life-altering condition. The guidelines articulated above illustrate how these principles would be applied in practice. The first allowable situation involves a treatment that appears to be safe and effective based on small-scale trials. The potential benefit of an experimental intervention must be established before engaging in a risk-benefit analysis. As such, phase 1 and phase 2 studies, as defined by the FDA to determine safety and toxicity levels, would not be allowable. Since these trials are principally designed to study a drug’s safety and efficacy, potential benefits are not yet clear. In these cases, risks to the prisoner might well overshadow the uncertainty of unproven benefits. Only phase 3 studies would be allowed, since basic efficacy would already have been demonstrated. This approach reflects the growing view that research presents not only burdens but can also present benefits that should be fairly distributed to prisoners. However, the distribution of burdens must still be considered— thus the requirement that the ratio of prisoner to nonprisoner-subjects does not exceed 50 percent. Biomedical research should involve prisoners only to provide a benefit to individual prisoner participants, not because they are a convenient source of subjects. This 50 percent limit represents the committee’s strongly held view that prisoners should not compose the majority of a biomedical study’s enrollment when nonincarcerated subjects are available. The just distribution of risks and the potential for abuse require that researchers not be permitted to unnecessarily rely on prisoners as subjects. It should be noted that the 50 percent limit is a ceiling that should only be approached when extensive use of prisoners as subjects can be justified by potential benefit. If a disease is less common in prisons, ethical guidelines would suggest a lower proportion of prisoner-subjects. Inmates should only be part of the subject pool to the extent that the disease affects the prisoner population. A study that extensively enrolls prisoners when nonprisoner-subjects are available should be examined closely to ensure that benefit to the prisoner population, and not convenience, is the true justification. Under guideline 2, the 50 percent ceiling can be exceeded in exceptional circumstances, such as for conditions that solely or almost exclusively affect prisoners (for example, repetitive sexual assault; see Example 7, Chapter 6, page 167). Due to the inherent risks associated with research involving prisoners, increased oversight is needed when a biomedical study enrolls a high proportion of prisoners or when the potential benefits are expected but not yet established. Thus, the second exception requires more stringent safeguards. In this instance, the protocol would need to be submitted to an expert panel of medical and ethical scholars, whose opinions would be collected by the supervising agency and published on the agency’s Web site. The agency would then need to publicly post an opinion regarding its acceptance or rejection of the expert testimony and the reasons for either. This process is analogous to the process used under Subpart D § 407 (IOM, 204). The preceding discussion should not be construed as an abandonment of the commission’s “primarily protective framework.” The goal of a risk-benefit framework is to maximize the safety and well-being of prisoners. As the commission emphasized, respect for persons requires that the risk of coercive practices and research abuses be negated (or at least minimized) by the use of protective measures. The commission’s approach emphasized the prevention of deleterious research protocols, but it did not properly account for potential that research can offer positive benefits to prisoner-subjects. A risk-benefit framework is still primarily concerned with preventing harm, but does so in a manner that allows for participation in research when the potential for benefit to prisoners greatly outweighs potential risks. Risk-benefit analyses of the type illustrated here provide the bases for the kinds of specific safeguards discussed and described in greater detail in Chapter 6. |
In order for there to be no ethical considerations in doing criminal justice research
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