Alasdair MacIntyre’s challenge: Police corruption,management ethics,and the indispensable virtues of integrity and constancy

Abstract

This paper investigates some of the information conditions necessary for the preservation of police officers’ individual and collective moral agency, particularly the virtues of integrity and constancy, which can diminish in markedly rule-based, informationally impoverished, or corrupt work environments. We focus on one particular work from philosopher Alasdair MacIntyre, who explores the threat of social structures to moral agency by using the hypothetical case of J whose job it was to make the trains run on time while avoiding questions about the cargo. J’s supervisors and the broader social structure he occupies inhibited his capacity to be a full moral agent. In order to illustrate the relevance and application of MacIntyre’s argument to policing and the good justice, including the wider philosophical and economic problems of compartmentalization of moral agency, we draw from his framework to consider our own case study in policing inspired by a challenging era within the recent history of the Los Angeles County Sheriff’s Department (USA). Implications for leadership and management in policing are discussed.

Keywords

Alasdair MacIntyre management ethics police corruption moral and intellectual virtues institutional theory Los Angeles County Sheriff’s Department

Introduction: Social structures, rules, information, and ethics

It is a well-known fact,¹ at least since Sir Robert Peel’s Metropolitan Police Act (1829), that the integrity and professionalism of line police officers is vital to the legitimacy of a police agency and its mission (Tyler, 2004). Legitimacy is a form of warranted validity; it arises when people within a defined jurisdiction recognize and grant ongoing regulative authority over specified areas of individual and collective activity. Although Max Weber’s (1964) classic account of the relationship between legitimacy and authority (legal, traditional, and charismatic) lurks behind discussions of social structures and the moral agency of people within them, we are going to focus on the philosophical and economic side of the investigation. The democratic form of government legitimacy and the “status function” (Searle, 1995, 2010) of certain organizations like law enforcement agencies (LEA) are usually derivatives of recognition and authority bestowed from the collective agency of citizens of a nation-state, “we the people” in American parlance. When line police officers and sheriff’s deputies usurp the boundaries of their constituted authority, act without integrity and professionalism, and even more basically, act without intellectual or moral virtue,² the public may withdraw support and that LEA (or parts of it) begins to suffer a crisis of legitimacy.

Much of the attention on police misconduct has been on the line police officer. What of the integrity of a police agency’s mid-level and executive management? What happens to an LEA’s moral, social, and political legitimacy when senior leaders trade off integrity and professionalism for corrupt³ practices and forms of power? What are the subtle ethical dimensions in such social orders for line police officers in resisting the corrupting practices and philosophies of unethical leaders? We believe these to be important and pressing concerns and we borrow from the prescient work of philosopher Alasdair MacIntyre to address them.

A note of caution, however. Our argument would be misunderstood if the above questions were somehow interpreted as being reducible to narrower questions related to the so-called “blue code” and the activity of whistleblowing or “snitching” within police culture (for a fine essay on these areas, see Miller, 2010). Instead, our paper discusses particular virtues necessary for police practice in pursuing a complex good like justice,⁴ the absence of which negatively impacts the ethics of police practice (including its management), and affects the status function of an organization and the broader institution to which it belongs (see Hodgson, 2006: 10; North, 1990: 3; Searle, 1997: 454–458).⁵ To do that, we want to understand some of the deeper ontological issues involved in the collapse of ethical practice. We know, for example, that institutions and organizations constrain or enable behavior (Hodgson, 2006). The constraining or enabling functions are achieved through formal and informal rules. As Elinor Ostrom (1986: 6–7) notes,

[r]ules are the means by which we intervene to change the structure of incentives in [organizational] situations…Instead of viewing rules as directly affecting behavior, I view rules as directly affecting the structure of a situation in which actions are selected…. Viewing rules as directly affecting the structure of a situation, rather than as [only] directly producing behavior, is a subtle but extremely important distinction.

When the formal or informal rule, functioning as a signaling device and incentive for the choice of actions, is incongruent with the normative nature of the public good being pursued by a practice, then an inevitable cost is levied against that professional guild’s modes of practice, assuming these are aligned with the good, but also on the individuals practicing the vital ethical virtues identified by MacIntyre and discussed in this paper. What is important to recognize is that the scale of that cost, of course, is determined by the total interaction—individually and collectively—with the new set of rules and their respective incentives (rewards, penalties, and monitoring or enforcement devices) and channels of information. Integrity mechanisms (Miller, 2010), such as inspectors general or internal affairs departments, are delayed, neutralized, or otherwise largely ineffective when the management structure has effectively been captured in this way. (The County of Los Angeles took years before they began to oppose the mismanagement and corruption of LA Sheriff Lee Baca and his Undersheriff Paul Tanaka. It was not until the County of Los Angeles’ “Report of the Citizens’ Commission on Jail Violence” (Baird et al., 2012) that investigations and reforms ramped up.) The organization itself may be said to be in crisis (Hwang and Lichtenthal, 2000), be mismanaged (Wright, 1999), or even be corrupt (cf. Giannetti, 2003). And when many such organizations are in this fix, the wider institution itself falls into a “status function” crisis (Searle, 1995, 2010).

The hypothetical case below was inspired by a crisis of legitimacy within the largest sheriff’s department in the United States, the Los Angeles County Sheriff’s Department. It was a crisis that evolved over time, but accelerated in the 2000s during the rapid promotions received by the new undersheriff (Hwang and Lichtenthal, 2000). We begin with a story and then discuss implications for preserving moral agency within wayward and warped police organizations. This is known as MacIntyre’s challenge.

A quick note about Alasdair MacIntyre’s thought. As a moral philosopher, MacIntyre’s publishing portfolio is long and voluminous. We focus on a particularly interesting talk he gave to the Royal Institute of Philosophy (UK), later published as a paper entitled, “Social Structures and Their Threats to Moral Agency” (1999). This was no obscure talk given by MacIntyre. Like the annual John Dewey lecture for the American Philosophy Association or Scotland’s Lord Adam Gifford lectures (which MacIntyre also gave), the annual Royal Institute of Philosophy lecture is a prestigious talk given by a “philosopher of international standing”. The topic of MacIntyre’s lecture is of profound importance for organizational and institutional theory, and reflects the full maturity of his ethical thought. Briefly, MacIntyre argues that social structures (e.g., organizations, or an institution) can compel a trade-off or compartmentalization of people’s ethical commitments and responsibilities, e.g., the practice of certain virtues, from their professional spheres of life. Although not all social structures are organizations or institutions (Hodgson, 2006), we emphasize the social structures that are organizations or institutions.

In some instances, social structures create what has been described elsewhere as an “obligation beyond consent”.⁶ This is where leadership and management can create a distortion within the direction of production. Since the information content within an organization necessarily affects the nature of the good it aims to produce or service it seeks to provide, the distortion works to incentivize some forms of information and behavior, often thought consistent with attributes of legibility, utility, efficiency, and broadest possible span of control, over other forms of information and behavior (see Scott, 1998, for myriad top-down, high-modernist examples of this distortion).⁷ A peculiar effect of the ensuing information trade-off is information disequilibrium and artificial scarcity taking place within an organization. Yet, a production distortion of this kind may not become immediately apparent, for example, under the Evidenced-based Management (EbM) philosophy currently dominating leadership programs (see Rousseau and McCarthy, 2007). As Learmouth and Morrell (2015: 521) note, EbM “defines evidence narrowly and inflexibly, whereas problems in management can always be understood [from a wider information bandwidth] in different ways and from different perspectives…[EbM] fails to question its assumptions and is [methodologically] blind to criticism”.

When weighed against the good in view, autocratic leaders can come to believe production inefficiencies may actually be efficient; that they may be counted as evidence of good management practice, when in reality the opposite is the case. An example of information disequilibrium and scarcity may be found in Baird et al. (2012) (Los Angeles County) Report of the Citizen’s Commission on Jail Violence:

As detailed in this Report, the problem of excessive and unnecessary force in the Los Angeles County jails was the result of many factors, beginning most fundamentally with a failure of leadership in the Department. Simply stated, the Sheriff did not pay enough attention to the jails until external events forced him to do so. Further, his senior leaders failed to monitor conditions in the jails and elevate use of force issues so that they received the necessary attention by the Sheriff, and the Undersheriff engaged in conduct that undermined supervision of aggressive deputies and promoted an environment of lax and untimely discipline of deputy misconduct. With multiple command layers between the jails and the Sheriff, there was no one in the Department who was responsible and accountable to the Sheriff for addressing the force problems in the jails. Nor was there an experienced, professional corrections leader in place to capably run the County’s vast and challenging jail system. (2–3; italics in original)

The effect can incite “deficiencies in people’s epistemic conduct”, including the compartmentalization of people’s ethical agency from practicing in professional life a set of well-known moral and intellectual virtues (Roberts and Wood, 2007). Those moral and intellectual virtues, e.g., seeking justice, treating others as ends in themselves, being temperate, intellectual courage–curiosity–humility, valuing and seeking truth, come to be seen by some utilitarian executives and managers as raising a cost against their agenda. Those long-standing values and practices are regarded as an impediment to new production agenda; thought to be inefficient, friction-producing, and irrational when rationality has been redefined along a new, lower cost conceptual utilitarian base, one that attaches to a technical or accountancy model of production. Indeed, some executives and managers (and some social structures) would prefer for employees not to see themselves as full-bodied moral agents for this very reason. This later point appears to be at the core of MacIntyre’s challenge to organizations (1999).

Conversely, a chief problem for this line of thinking is that it violates its own premises: when evaluated or weighed relative to the nature of the good in question, it is not at all efficient. It does not generate much utility, generating instead production uncertainties and instabilities. For a while, even malfeasance and corruption may disguise its information loss. It may yield temporary increases in production returns by virtue of new, lower-cost information channels (e.g., used for circumventing watchdog units, for selectively escalating violence within large-scale jail facilities, for purposes of reducing community crime by distorting crime statistics within a geographic jurisdiction, or in curtailing supervisory accountability for ensuring proper conduct). But because the cost of an information channel is merely proportionate to its capacity (Arrow, 1971), a “catch 22” emerges. Lower capacity information channels ensure truncated, suboptimal, often lower-cost information being fed through to production; lower-cost information channels cannot reliably supply the information diversity and capacity necessary for a complex good like justice to be achieved. It is like an unhealthy body whose arteries are clogged with plaque: some blood gets through but not enough to keep the patient healthy. Costs soon escalate when visible corruption underscore injustices (e.g., undue violence against individuals, communities), falsification of data (e.g., crime statistics), misuse or misallocation of scarce public resources, loss of reputational legitimacy, and stiff civil and criminal penalties for individual police officials and their organizations. George Stigler (1961: 224) noted some time ago that “‘[r]eputation’ is a word which denotes the persistence of quality, and reputation commands a price (or exacts a penalty) because it economizes on search”. We would add, because reputation also signals the pattern and quality of interaction between individuals and organizations over time, it is a close cousin to the term “legitimacy”. This is especially so for police agencies.

Informational failures and organizational collapses have been studied for decades. Not all failures and collapses owe to corruption. Some information loss is due to mismanagement and systems failure. For example, Turner and Pidgeon (1997) analyzed dozens of organizational crises within the British government and discovered warning signal failures had four principal causes: (a) erroneous assumptions by employees who might have noticed them; (b) the existence of informational handling difficulties (e.g., clogged information channels); (c) a cultural lag in precautions; and (d) reluctant employees in position to notice the pending disaster. Choo (2005) found that an organization’s beliefs and aspirations (its collective ends) can sometimes conceal information signals that are noticed and would otherwise serve as warnings about problems occurring within productive activities (its means). For this reason, Choo concludes, information signals that convey a warning are “often ignored or disregarded” (8) because of a familiar motive we address below concerning the Inner Ring (CS Lewis, 2001): groupthink.

Groupthink occurs when members hide or discount information in order to preserve group cohesiveness…The group overestimates its ability and morality, closes its mind to contradictory information and applies pressure to maintain conformity. (Choo, 2005: 10)

So, once all of the relevant ontological categories are identified and calculated, the costs of production are vastly higher (significantly more inefficient) under a vicious technical model (where the virtues have no safe harbor and where corruption may be tolerated) than the costs of production under the guide of an ethical model (where moral and intellectual virtues are preserved, where the bandwidth of information is diverse and capacious). Complex goods like justice, which requires an immense amount of diverse information, may not be achieved where these virtues are absent.

For his part, MacIntyre (1999) promotes two key virtues, integrity and constancy, which help to inoculate an individual against a social structure’s role-splitting effects of compartmentalization between one’s professional life and all other of life’s activities and ethical commitments. MacIntyre seeks to achieve on behalf of the individual a mature, unified moral self. For relevant corresponding social structures, he insists that they make space for the practice of the moral and intellectual virtues and critical deliberation, thereby ensuring the health of the organization and the widest possible moral responsibility for one’s individual actions (MacIntyre, 1999). While the present case in our paper deals with a coercive, dictatorial version of the problem, this is not a necessary feature for creating a social choice obligation beyond consent discussed here (see note 18 below). The idea is that whoever controls the information channels of the organization controls organizational agenda. MacIntyre’s challenge is for those information channels and organizational agenda to preserve space for optimal ethical agency.

Method

This paper employs a well-known philosophical and economic method in which we identify a relevant problem informed by history, develop a hypothetical case embedded within practice, and run a thought experiment. A thought experiment is an acceptable method to justify an academic investigation and argument (e.g., see Brown and Fehige, 2019), not because it achieves Popperian verification or falsifiability, but because it offers explanatory power concerning complex phenomena (Caldwell, 1982). This is so in philosophy, economics, the study of management and organizations, as well as in certain hard sciences such as physics. Thus, we join with Caldwell (2009), and by extension Hayek (1974), in choosing humility in matching a method to the type of phenomena under review. Indeed, our hypothetical case parallels Alasdair MacIntyre’s (1999) own format, not peculiar to MacIntyre or to anyone else, derived from his original essay, “Social Structures and Their Threat to Moral Agency”.

In his paper, MacIntyre develops a thought experiment using a fictional character, J, where J is a train scheduler who has been told by his superiors (and reinforced by his social structure) to strictly limit his professional focus and knowledge to making the trains run on time, without concern for the kind of freight being moved by those trains. Failure to comply with his organization’s expectations would result in severe consequences. In complying with the rules, J occupied a valued role within the organization. For his part, J compartmentalized any personal ethical commitments and derived from other roles in life for the sake of meeting these professional expectations. When questioned later about the freight trains he scheduled for transport having been German munitions and Jews bound for Nazi death camps, J asserted he had no moral failure in that he did not know what was in the train cars and simply met his duty required by the social structure he occupied. In effect, J subordinated his individual moral responsibility to habits and expectations acquired from the social structure to which he belonged. A question MacIntyre asks is, was J individually, and J’s social and cultural order collectively, morally culpable for the outcome of those activities?

As MacIntyre implies in his “Social Structures” essay, reliable and sensible intuition about moral and intellectual virtues may have basic warranted justification⁸ to inform a profession’s standards or criteria of practice. From a realist ontological point of view, the moral and intellectual virtues are first order goods intended to bring about human flourishing and limit human harms (e.g., Roberts and Wood, 2007). As such, they are prima facie relevant to any discussion about professional (applied) ethics, particularly in fields having to do with the virtue and goods of justice. Simply put, one reasons deductively from the moral and intellectual virtues; one does not reason or argue inductively to them. Hence, we took a mirroring approach to our investigation in order to highlight the potential value of MacIntyre’s ethical contribution to the policing community. Given his keen insights into social ontology, MacIntyre’s work has unsurprisingly become an object of focus by adherents and critics within the organizational theory and management literatures.⁹

Finally, this is not an investigation built on a strawman. Rather, our hypothetical case drew inspiration from a series of actual historical events around the activities and eventual criminal investigation of former Los Angeles County Sheriff Lee Baca (1998–2014) and his former Undersheriff Paul Tanaka (2010–2013), both of whom were later prosecuted, convicted, and sentenced for federal crimes occurring in the performance of their work. Our hypothetical case, then, benefits from being assessed on the additional qualities of subject relevance and internal coherence; it discusses an LEA whose information economy suffered a collapse through radical mismanagement and the capture of the organization by a Machiavellian figure.

The case of Deputy Sheriff Pete Malloy: The set-up

Imagine the hypothetical case of Pete Malloy, a seven-year sheriff’s deputy employed by a large county somewhere in California, USA. In addition to being a police officer, Deputy Malloy was a leader with a local boy scout group, he coached high-school baseball part-time, he was an elected elder in his Christian (Protestant) church, and he volunteered at the local Veterans Administration hospital, reading to and talking with wounded bed-bound military veterans. Deputy Malloy inhabited a professional social order where the elected sheriff of the county held an untethered, ethereal, mile-high personal credo of “high values, best effort, gallant thoughts”, and had written a doctoral dissertation in which he asserted in the conclusion, “incest should be optionally decriminalized to facilitate therapeutic treatment of victims and perpetrators”.

It was also a social order where the second-in-command undersheriff (i.e., an executive position within the management hierarchy located directly beneath the sheriff and above the assistant sheriff positions) institutionalized an informal and unwritten rule throughout the organization: “work the gray and work it hard”. If white represented the sum of legal actions, and black represented the sum of illegal actions, the color gray was meant to represent the sum actions that fell somewhere between clearly legal and clearly illegal. And “working it hard” meant getting right up against the black line. In practical terms, this ambiguous informal rule essentially meant pressing the limits of legality and administrative warrant or license by bending the rules in a way that established plausible legal deniability for administrators if somehow the rules were broken. The purpose of such a philosophy was not necessarily to engage thoughtfully in the obvious heuristic cross-currents, complexities, and the gumshoe hard work of proactive constitutional police work. Rather it is to divide the information environment in a way that often supersedes one set of laws and rules developed over time within the free and civil society—rules that the undersheriff believed too often had come to handcuff the work of law enforcement personnel—with another set. They were designed to more easily identify and separate bad people from good people (see, e.g., Sherman, 1982), and to raise informal costs against criminal activity in order to reduce recidivism and lower rates of crime. This was its utilitarian justification.

The undersheriff was a detail oriented certified public accountant, whose skills became useful to the sheriff, and a former member of an unauthorized law enforcement clique called the Norsemen, an infamous group of deputies who retaliated against supervisors’ attempts to hold deputies accountable at several county substations. Put short, the undersheriff had great potential talent for corruption.

The head-in-the-clouds sheriff and the mercurial undersheriff set the rhyme and rhythm for this large law enforcement organization for about 10 years during the early 2000s to early 2010s. Because the sheriff had earned a reputation for not wanting to hear about internal problems and protected his agency from outside political interference, his undersheriff found the opportunity to fill the management void befitting his confrontational personality and came to serve as the intermediary between virtually the entire department and the sheriff. It is within this peculiar organizational milieu that official and constitutional responsibilities were allocated to Deputy Pete Malloy and he was expected to perform his role consistent with those responsibilities.

For Deputy Malloy (and others occupying the same or similar roles) to fail to discharge his assigned responsibilities and to disappoint those expectations was to invite severe disapproval and other sanctions from the undersheriff and his network of hand-selected personnel. There were at least five codes Deputy Malloy was called to consider and commit to in order to be considered fit for his role with this organization. First, is the sworn commitment to uphold the U.S. Constitution, and all relevant legal principles that flow from it. This involves the initial and ongoing awareness, study, and in-service training in the federal and state Constitutions (e.g., what they proscribe and permit), including relevant case law developed over the decades by state and federal courts, and relevant state criminal and associated statutes and codes. Next, is the initial and on-going commitment to California’s Law Enforcement Code of Ethics.¹⁰ Third, it consists of the sheriff’s department written policies, procedures, and codes of conduct, which generally align with those of other mainstream constitutional law enforcement agencies within the United States. And finally, Deputy Malloy must be aware of the particular, respective management and leadership philosophies held by the publicly elected sheriff (fourth) and the duly appointed undersheriff (fifth), philosophies that were, in practice, frequently at odds with the first three codes. In virtue of their respective roles, the sheriff and undersheriff were widely regarded as having significant reservoirs of legitimacy (cf. Tyler, 2004; Weber, 1964); political and social capital formally recognized by local, state, and federal government and political authorities, and community mandarins (e.g., media, civic groups, business groups, academic and special interest groups). In short, the sheriff was a popular fellow with many constituencies.

The sheriff’s view of administrative discipline largely consisted of an avid faith in the malleability of human nature; a nature that could be corrected in the direction of a loose ideal (“high values, best effort, gallant thoughts”) using a theory of human capital (see Becker, 1993 for one economic conception), coupled with redemptive or restorative education and a therapeutic approach. The idea, in the sheriff’s conception, was that the progressive reeducation of a low, bad, or even corrupt performing deputy could get that wayward person back on the “right track”. With enough training or retraining, sufficient knowledge and skill acquisition, and adequate counseling and personal reflection, an organization can change the character, moral agency, and ethical dispositions of employees for the better.¹¹ The sheriff’s view was not without some degree of conceptual merit. Reinstituting good order and discipline can often be achieved for minor offenses when done in the right way. But the sheriff often misapplied second or third chances with impenitent deputies, managers, and executives. In essence, the view led to widespread command malfeasance (see Giannetti, 2003, for a similar effect in the Philadelphia Police Department).

The undersheriff’s view of administrative discipline also deviated slightly from many U.S. law enforcement leaders in the late 1990s and 2000s, leaders who often favored less tolerant, stricter forms of administrative discipline (cf. The Police Chief, 2006), including, as one California example, the Los Angeles Police Department under Chief Bernard Parks (Wilms, 2004).¹² Perhaps more interesting, the undersheriff sought where possible to preempt the sheriff’s philosophically progressive reeducation approach by attempting to short circuit the discipline process altogether. He achieved this in part by attending several patrol station and custody assignment meetings held with all available sworn personnel, including command staff, and making proclamations about “working the gray”, enforced by a score of handpicked managers and supervisors. (For the purposes of the story we ask the reader to take for granted that fraud occurred within the civil service testing and promotion process allowing the undersheriff to create a cult of loyalists across the organization.) The undersheriff used such meetings as a way to signal the cost of choice-sets and decision-making for line staff, supervisors, and managers, that is, making it clear that virtually any decision at odds with the undersheriff’s management philosophy would have a corresponding administrative price attached to it. This is one example of controlling the information environment by creating an obligation beyond consent.

At one of those meetings, Deputy Malloy heard the undersheriff make numerous statements disparaging the department’s Internal Affairs Bureau (IAB) and the disciplinary process; remarks that undermined the authority of IAB and the ability of other department executives and supervisors to curb and remediate inappropriate, unprofessional, and even illegal behavior. During a subsequent meeting at the main jail facility the undersheriff met with and berated supervisors who tried to hold deputies accountable for their conduct under the first three codes mentioned above. On it went. The undersheriff would regularly engage in conduct and voice management philosophy (see below) that successfully undermined supervision of excessively aggressive deputies and promoted an environment of lax and untimely investigation and discipline of law enforcement personnel misconduct. Since the undersheriff made the trains run on time, he became an indispensable person on whom the sheriff relied in order to pursue his big-picture, national and international agenda. Yet by closing off access to his office, the sheriff created an information problem within the organization and effectively quashed any internal executive and mid-level management uprising against the undersheriff. This was a failure of leadership.

Consequently, Deputy Malloy occupied a social order that was morally contradictory. On the one hand, Deputy Malloy made a conscious effort to conduct his professional affairs in a way that achieved the aims of the first three codes to which he was obligated: (i) the U.S. and California Constitutions, and all relevant legal principles that flow from them; (ii) the initial and ongoing commitment to California’s Law Enforcement Code of Ethics; and (iii) the sheriff’s department written policies, procedures, and codes of conduct. A minimally ethically competent law enforcement officer in California performs his or her duties and discharges his or her responsibilities consistent with (i) and (ii), and some department-specific version of (iii). However, the leadership of his organization had signalled to Deputy Malloy and others two additional operative principles or codes. These emerged from the management and leadership philosophies held by the sheriff: (iv) do not give the sheriff bad news; and the undersheriff: (v) deputy accountability has been and will continue to be undermined in such a way that prevents consistent enforcement against deviations from (i) through (iii).

In effect, virtually all personnel disciplinary review was lodged within the undersheriff and the undersheriff’s network of loyalists, who encouraged deputies to “work the gray and work it hard”. This arrangement exhibited the marks of a ruthless kind of practical subjectivism usually reserved for despotic personalities, and political left or right leaning authoritarians controlling nation states. Accordingly, the undersheriff told supervisors (sergeants), managers (lieutenants, captains, and commanders), and executives (chiefs, assistant sheriffs) to lay off the hard-working deputies assigned to the patrol, custody, and detective divisions, and that whistleblowers and the disloyal would be treated as “snitches” and “rats”, who would be punished. This was an effect of the wider information problem affecting police practice.

In this hypothetical case, the police union representing deputies did not object to the undersheriff’s less-discipline, (so-called) pro-deputy modus operandi because it achieved the union’s collective-interest in minimizing the risk of administrative discipline to its members. When discipline did occur, the arrangement often minimized the consequences of that discipline. Although no inspector general position existed within this department, an Independent Office of Review (IOR) had been set up by the county board of supervisors merely to ensure that law enforcement misconduct was being monitored and investigated by sheriff’s department personnel. The IOR merely monitored the pulse of the sick patient and had no real administrative power to help remedy the disease.

In sum, Deputy Malloy was aware that these two additional competing codes, (iv) and (v), were a real and pressing feature of his social order. He was also aware that the two informal, unwritten codes had the potential to conflict with and even circumvent the three primary formal codes on the basis of which he conducted his work. He was further aware that should such moral conflicts arise, his union would not vigorously support an individual deputy or small group of deputies trying to do the right thing because to do so would threaten the union’s alliance with the professed “pro-deputy” undersheriff. The union in this case had made a utilitarian calculation on behalf of the “good” (i.e., collective interests) of the broader membership.¹³ The union had placed an economic bet that the undersheriff would be the sheriff’s handpicked successor and its political support would bring long-term pay-offs in future collective bargaining. Looking the other way was a form of negotiation.

The case of Deputy Sheriff Pete Malloy: The incident

One particular evening, Deputy Malloy was working his usual custody assignment in a large downtown jail facility. At the time, there were no cameras or recording devices in the hallways or worn by personnel. As he was conducting a scheduled cell check on an assigned floor, Malloy turned the corner of a well-lit hallway and, from about 50 feet away, saw two uniformed deputies assigned to a neighboring area standing next to a man, a prisoner, who was a known gang member with close operational ties to the Mexican mafia (EME), which had organized crime tentacles throughout California and within its jails and prisons. Malloy noticed briefly that the prisoner’s hands were down by his side. Malloy saw one deputy punch the side of the man’s head. The prisoner immediately dropped to the floor and was subsequently lying motionless. It appeared to Deputy Malloy that the prisoner had been knocked out. As Deputy Malloy walked slowly past jail cells he heard both deputies shouting in broken cadence, “Stop resisting!”. As they uttered this remark, Deputy Malloy noticed that the man on the floor remained motionless, eyes closed, appearing to be unconscious. The two deputies noticed the presence of Deputy Malloy, now about 40 feet away, and bent over and handcuffed the limp man. Using a radio, they called for a medical team to respond to their location. Deputy Malloy finished the cell check of his assigned area, which did not include the area of the two deputies. He was preparing to write his log report, which would include what he had witnessed, viz. the two deputies and the prisoner. However, Deputy Malloy’s supervisor, who had learned of the incident during the medical callout, instructed him to take no interest in what he had witnessed, viz. the two deputies and the prisoner; that it was the responsibility of the two deputies, not his, to reference the incident on a log and write an incident report. Deputy Malloy initially objected saying that he was a relevant witness to a narrow set of facts, that his own professional integrity and department policy required noting on his report. The supervisor told Deputy Malloy that Malloy was only responsible for his area and indicated that he, the supervisor, worked for the undersheriff and if Deputy Malloy knew what was good for his career, he would comply.

Deputy Malloy did not comply with the supervisor’s order, finding it to be inconsistent with the ethical and legal responsibilities required of him by the first three codes, and therefore an unlawful order. He also found the order inconsistent with a good faith conception of justice. Deputy Malloy filed his report and included what he had witnessed, viz. the two deputies and the prisoner. Later that evening, Deputy Malloy’s supervisor, Sergeant MacDonald, with Lieutenant Moore’s knowledge, deleted the part of Deputy Malloy’s report referencing what Malloy had witnessed concerning the two deputies and the prisoner. Both Sergeant MacDonald and Lieutenant Moore adopted the view that the two deputies who had struck the prisoner were merely “working the gray and working it hard”.

The next day Deputy Malloy learned that his supervisor had altered his log report and that he had been transferred to a different custody facility. Deputy Malloy concluded that he had met his initial responsibility in filing an accurate and factually relevant log report. He decided that he had no additional duty to report the altered log, given that the corrupting social structure of his department, evidenced by the operating management and leadership philosophies of the sheriff and the undersheriff (e.g., represented in codes iv and v above), significantly diminished his options for exercising moral agency without stiff penalty. In view of this social milieu, Deputy Malloy saw it as a supervisor’s prerogative to alter a deputy’s log report, although his department’s regulations afforded no such explicit supervisory discretion to alter official reports, particularly reports concerning the use of force.

In summary, Deputy Malloy holds the following view:

When I unspool my situation, I met my responsibilities under the three codes, (i) through (iii) above. Regarding the codes originating from the management and leadership philosophies of the sheriff and undersheriff, I complied with (iv) because I did not give the sheriff bad news. I did not file an administrative or criminal complaint against my supervisor for altering my report. I did not comply with (v) because I filed a truthful, accurate report, contravening an unlawful supervisory order, the facts of which could implicate deputy misconduct in some way. In doing so I did not undermine or prevent the consistent enforcement of codes (i) through (iii). Simply put, I did my part, even if narrowly, in ensuring the possibility of accountability. You cannot charge me with moral failure.

Was Deputy Malloy’s defense adequate? Can he be charged with moral failure?

MacIntyre’s challenge: Social structures and moral agency

Alasdair MacIntyre (1999: 312–315) argues in his “Social Structures” essay that a person is morally responsible for his or her actions in at least three respects: (1) for intentional actions; (2) for incidental aspects of those actions of which they should have been aware; and (3) for at least some of the reasonably predictable effects of their actions. Deputy Malloy believed that he had met his moral responsibilities because his intentional actions, and the incidental aspects of those actions, as well as the reasonably predictable effects of his actions were all consistent with being a moral agent, that is, with respect (minimally) to (1) through (3) above. However, what Deputy Malloy did not know after his involuntary transfer, but he may well have predicted, is that the man he had seen struck and who remained motionless on the floor, ended up in the hospital. The prisoner ended up in a coma and charged with several additional crimes, including battery on a police officer and resisting arrest. These new criminal charges constituted a “third strike”, which in California meant at the time (if convicted) life in prison without the possibility of parole. The content of what Deputy Malloy observed and initially reported, although quite narrow in its context, was relevant to the prisoner’s new criminal case, as well as to the civil case the prisoner would later bring against the two deputies and the sheriff’s department for civil rights violations, various torts, and allegations of state crimes, including battery by a police officer under the color of authority.

In fact, Deputy Malloy’s actions appear to have fallen short of the conditions (1) through (3). For it is understood that Deputy Malloy’s intentional failure to file a follow-up complaint or grievance against his supervisor’s actions violated condition (1), in that he became aware of the intentional altering of his report, which, given his knowledge of the undersheriff’s philosophy of “work the gray and work it hard”, did serve to conceal relevant exculpatory information (his) and which may have consisted in misconduct in the cover up of a crime (e.g., battery on a prisoner under the color of authority by the two involved deputies). In addition, Deputy Malloy ought to have been aware that his intentional action to withhold a complaint of misconduct against his supervisor made him incidentally complicit, if only passively so, in a cover-up and, thus, in violation of MacIntyre’s condition (2). Furthermore, it was reasonably foreseeable that the intentional alteration of Deputy Malloy’s log report could have led to, and as it happens ultimately did lead to, conditions which made the filing of a false report by the two deputies and Sergeant MacDonald easier, that is, the deletion of facts initially reported by Malloy made it easier to conspire later to justify using excessive force on the man, in violation of condition (3). It was reasonably predictable for Deputy Malloy to have been aware that his actions or his omissions to act would constitute a moral breach of fiduciary duty a public servant, a veteran deputy sheriff, has to report facts of this kind. Put this way, Deputy Malloy appears to be on the moral and legal hook for undermining or preventing the consistent enforcement of codes (i) through (iii), codes he swore an oath to uphold. As Rozuel (2011: 688, 696) suggests, moral agents are “expected to scrutinize [their] identity” within organizations and resist wearing role-defined masks that cancel out the practice of virtues such as moral integrity.

The case of Deputy Malloy is not unique. Many social institutions are subject to these kinds of conflicts of interest: between clear, affirmative moral and legal duties, and the often-contrasting isomorphic realities of organizational collective-interest or personal self-interest (DiMaggio and Powell, 1983; Olson, 1965). The undersheriff was proceeding on the assumption that “working the gray and working it hard” would eventually create a safer Los Angeles county, something he could also point to during a future political campaign for sheriff. The trade-off was bending and then breaking the law. When that happened in this and a series of similar incidents, moral authority and legal legitimacy gradually retreated from the organization and its members. We resist the use of the marketing term “brand” in the high and noble work of public service, but the “brand” or reputation of a law enforcement organization also suffers when such corruption occurs. And when evaluated against the lessons of history, MacIntyre’s position concerning the plausibility of social structures becoming a threat to moral agency is surely correct. There are in fact, types of social structures that inhibit or discourage those who inhabit them from understanding themselves as moral agents answering to objective, observer-independent, and transcendent moral codes, principles, and virtues.¹⁴ The infamous Nazi police cases are certainly among these kinds of social structures (Browning, 1998; Goldhagen, 1997). So too were notorious police departments in the American south (e.g., Bull Connor of Birmingham, Alabama) when enforcing the corrupting social structures under the old Jim Crow laws, or northern cities like Chicago or Newark under “redlining” and other iniquitous action, or certain American west coast cities during the 1970s (e.g., Henry Cohen’s 1980 exposé of a particular vice squad in Long Beach). Police agencies in today’s totalitarian and authoritarian nation-states are modern examples.¹⁵

For a time, Deputy Malloy’s agency was an example of a social structure corrupted by bad leadership. The sheriff’s philosophy of management and administrative discipline offered his employees second and third chances, even when the actions of subordinates, including those of the undersheriff, were clearly intentional, willful, brazen violations of the codes, principles, and virtues discussed above. Moreover, the undersheriff had effectively captured the entire administrative process and corrupted it in such a way as to cripple the moral agency of deputies to keep peers, supervisors, managers, and executives accountable; in essence, it was the creation of an information environment obstructing upward, peer, and downward ethical and legal accountability for their actions. The sheriff and the undersheriff’s mismanagement of the department inhibited the powers of moral agency “to be a real possibility for milieus in which reflective critical questioning” of conduct and standards of practice is “taken for granted as an activity that is at home” (MacIntyre, 1999: 317). As MacIntyre notes, having the intellectual and social space to question or to raise relevant and important objections to the sheriff and undersheriff’s management philosophies and practices implies an important presupposition.

The necessary presupposition of such questioning is some more or less shared conception of what it is to be a good human being that focuses upon those qualities which individuals possess or fail to possess qua individuals, independently of their roles, and which are exemplified in part by their capacity or their lack of capacity to stand back from and reconsider their engagement with the established [or pre-or-newly-re-defined] role-structures. (MacIntyre, 1999: 317)

We will return to this question of leadership promoting moral agency and opposing moral corruption.

MacIntyre’s two indispensable virtues

MacIntyre identifies two core virtues that people do well to possess when occupying roles within social structures, particularly in complex and morally challenging ones. These are dispositions of character and intellect that prevent a person from devolving into the role(s) he or she plays within those types of social structures. Indeed, identity-splitting between person and role often allows opportunity for compartmentalizing unethical conduct in parts of one’s life. Pete Malloy qua individual person, like all of us who value and attempt to practice intellectual virtue, must understand that the qualities of character and mind as an ethically competent individual person are prior to and deeper than those of role-player Deputy Pete Malloy. MacIntyre proposes two virtues to prevent self-splitting compartmentalization (1999: 317–318). The first is integrity—an ethical and consistent uprightness; to refuse to be one kind of person in one social context, while quite another in other contexts; to develop inflexible limits to one’s adaptability to the roles one plays. The second is constancy—that those who possess limits to flexibility of character, and exhibit the same moral character in different social contexts, constantly pursue the ethical goods in view without distraction over time. An independent, morally responsible person needs to avoid the divided, compartmentalized, and excessively malleable or amoral self. We know from Deputy Malloy’s history that he appears to lead a commendable life of service to others in the other social roles he occupies. Malloy does not possess perfect character, none of us do; but in life he appears to evince good character.

In the field of law enforcement, these two virtues—integrity and constancy—are strong candidates for residing among the foundational virtues necessary to prevent the kind of corruption occurring within Deputy Malloy’s department. A person of integrity, it has been said, is in no need of rules because he or she does the right thing characteristically; someone who does not cheat, lie, or steal when he or she has the opportunity or a motive to do so; someone who has courage and fidelity to the nature of the law enforcement good: justice. So, integrity would appear to be a key background virtue for any law enforcement officer within a free and civil society. And the virtue of constancy is a necessary condition of character for the very reason that so many seem to compromise themselves in allowing their personal and professional ambition to pursue what CS Lewis (2001: 141–157) called the Inner Ring of organizational power.¹⁶

In a lecture to students at King’s College (London) in 1944, Lewis offered an antidote to the corrupting influence of the Inner Ring:

The quest of the Inner Ring will break your hearts unless you break it. But if you break it, a surprising result will follow. If in your working hours you make the work your end, you will presently find yourself all unawares inside the only circle in your profession that really matters. You will be one of the sound craftsmen, and other sound craftsmen will know it. This group of craftsmen will by no means coincide with the Inner Ring or the Important People or the People in the Know. It will not shape that professional policy or work up that professional influence which fights for the profession as a whole against the public: nor will it lead to those periodic scandals and crises which the Inner Ring produces. But it will do those things which that profession exists to do and will in the long run be responsible for all the respect which that profession in fact enjoys and which the speeches and advertisements cannot maintain. (CS Lewis, 2001: 144–145)

Lewis’ concept of loyalty to the Inner Ring is quite different from the concept of loyalty among friends.¹⁷ All things being equal, the loyalty to the Inner Ring may be regarded as a vice because its form of loyalty draws almost exclusively upon the utility of self-interest, of achieving more-and-more status or power, and treating others as means to that end. The irony lies in the necessity of pretending to thoroughly deny one’s individual identity and real motives while conforming to the Inner Ring. Yet, in the quest for membership, the ethical virtues of integrity and constancy must remain subordinate to Inner Ring values. Whereas in loyalty among friends, at least in Lewis’ conception of it, are free individuals ceding themselves as equals for fellowship, praising common interests, yet never denying individual identity or ethical responsibility. The virtues of integrity and constancy are quite at home in friendship loyalty. As such, friendship loyalty may be regarded as a virtue. The reason for this is simple to conceive. Loyalty in the sense discussed here is a second order virtue, contingent to, among other things, a relationship or set of relationships connected to the pursuit of goods not harms. Loyalty among people to produce harms is best regarded as a vice. This is how we may readily distinguish, for example, between the loyalty among Stalin’s Party and NKVD comrades during the Great Terror (1936–1938) (Gregory, 2009), which produced incalculable human harm, and the peer loyalty among the San Bernardino (California) police officers (SBPD) and agencies in countering the terrorist attack on 2 December 2015, where a husband (Syed Rizwan Farook) and wife (Tahfeen Malik) Daesh (ISIS) sleeper cell emerged and murdered 14 and wounded 22 people. In both instances state violence was used, yet there is no room for moral equivalency in the expressions of loyalty. In the NKVD example, loyalty was not ethically justified. In the SBPD case, loyalty was ethically justified. Hence, loyalty as an ethical relation is nearly always contextual to a set of conditions. If the Inner Ring and its version of corrupting loyalty is creating a social structure to be avoided because of the ensuing moral costs to self and others, then CS Lewis’ circle of friendship (1988) and MacIntyre’s (1981) communitarianism are both on opposite sides of the equation, together evoking a different kind of loyalty based on (or non-violative of) moral agency tethered to foreground conceptions of individual and social human flourishing.

While Deputy Malloy’s undersheriff had clearly created an Inner Ring, and Sergeant MacDonald and Lieutenant Moore thought of themselves as members of one of its layers, CS Lewis’ point for Deputy Malloy might consist in suggesting that Malloy attend to his professional commitments, including the dispassionate reporting of misconduct if called for. Part of being a “sound craftsman” in the law enforcement context consists in protecting the good at the very core of such commitments: justice. For justice to be achieved, all of the known, relevant, and context-bound information (facts) concerning an incident requires disclosure. To his credit, Deputy Malloy had not been intimidated by Sergeant MacDonald’s caution, “if you know what is good for your career, you’ll comply”. Sergeant MacDonald’s caution served both an explicit threat from and a tacit invitation to join an outer layer of the Inner Ring. Deputy Malloy had no interest in joining the Ring, yet he was concerned enough about the threat to moralize beyond the limits imposed by his organization’s leadership philosophy (codes iv and v above) but stopped short of reporting Sergeant MacDonald’s misconduct in altering his report, and related corruption. It was the virtue of constancy that seemed most compromised in Malloy’s case. The organization’s leadership was prepared to destroy his career if he pursued the matter further, pressing the limits of Malloy’s intellectual courage.

On this point, MacIntyre’s essay on social structures and their threat to moral agency demonstrates precisely how Immanuel Kant’s emphasis on duty created by rules (deontology) is inadequate on its own to fill out the social structure or environment. MacIntyre (1998: 198) comments on the insufficiency of the Kantian ethic:

Because the Kantian notion of duty is so formal that it can be given almost any content…. Anyone educated into the Kantian notion of duty will, so far, have been educated into easy conformism with authority.

By contrast, MacIntyre (1998: 80) identifies the virtues as having an end beyond conformism.

The exercise of virtue is, of course, for Aristotle not an end in itself. Virtues are dispositions which issue in the types of action which manifest human excellence.

Rules and laws as institutions are important. They help to evoke, nudge, or guide one’s rational self-interest in a particular direction (Thaler, 2018; Thaler and Sunstein, 2009). The theory of social choice that has to do with the individual–collective problem is intimately bound up with the kind of rules that best govern a particular social environment given certain conditions and principles (Arrow, 1951, 1983; Hayek, 1960; Nozick, 1974; Rawls, 1971; Searle, 1995, 2010). When designed well, rules offer a plausible social choice equilibrium and help to tutor the soul toward virtue (Plato, 2005). Yet they are often insufficient in themselves to compel the moral conduct of free and free-willed people. People are often irrational or otherwise resist compulsion or choose a different path than the rules obligate, sometimes for very good reason (Scott, 1998, 2014). To this specific point, we have argued, with MacIntyre, that the practice of moral and intellectual virtues is necessary to fill out the moral life, including within relevant organizations and institutions.

Deputy Malloy may have exhibited no desire to join an organizational Inner Ring that had corrupted his department and its law enforcement practices (a moral good). At the same time, he failed to properly exercise his full resolve as a person of integrity and as a role-defined law enforcement officer, consistent with codes (i) through (iii) in moving beyond the artificial and illegitimate organizationally imposed boundaries on his moral agency (a moral bad). For his part, Deputy Malloy permitted the leadership of his organization (its social structure, its information economy) to impose a compartmentalization in defining his role as a law enforcement officer in a way that was at odds with who he was as an independent, ethically competent person, and in a manner different from what constitutional policing requires of law enforcement personnel in the free and civil society (e.g., codes i through iii above). If the moral and intellectual virtues are traits that help a person flourish or become excellent as a human being, then the context-bound traits of flourishing and excellence of the role-defined cop, plumber, librarian, accountant, psychologist, or college professor ought to be congruent with this holistic view of human flourishing and excellence (e.g., see Roberts and Wood, 2007: 68). Yet the two informal management rules were enough to compel the opposite of moral conduct. For Deputy Malloy, the price was too high to take matters any further within his organization or union. From the purely economic point of view, Deputy Malloy had calculated that the marginal costs of his blowing the whistle exceeded marginal benefits (Buchanan and Tullock, 1962).

Conclusion

It is close to being a tautology that leaders of law enforcement organizations ought to govern their lives ethically. What Alasdair MacIntyre brings to the discussion is insight into how social structures can obstruct an individual’s ethical commitments through a compartmentalization effect, and then what might be done about it. Our contribution extends MacIntyre’s work by discussing in more detail some of the ontological features (e.g., status function, information asymmetries and trade-offs, rules, obligation beyond consent, relevant costs within production, corruption) occurring within organizations and the institution. We use the hypothetical case of Deputy Pete Malloy inspired by recent troubles within the Los Angeles County Sheriff’s Department to illustrate some of the practical micro aspects of MacIntyre’s concern.

Although social structures may threaten the moral agency and practices of people affiliated with them, MacIntyre’s challenge for law enforcement personnel opposing such corruption and bad management is to (at minimum) adopt, cultivate, and practice two essential virtues: integrity and constancy. Essentially, this means to foster the kind of organizational environment (e.g., information channels, culture) where leaders of law enforcement agencies model and promote intellectual virtues and powers of moral agency in order for them “to be a real possibility for milieus in which reflective critical questioning” of conduct and standards of practice is “taken for granted as an activity that is at home” (MacIntyre, 1999: 317). When enough individuals in a community make this commitment, individually and jointly, even within a scaled organization of 18,000 personnel, even when collective interests of unionization tempt us to look the other way for economic gain, giving attention to the scope and purpose of rules and their effects on practice, the community becomes less fragile (Taleb, 2014), less susceptible to corruption (Klitgaard, 2014), and more legitimate with and accountable to the public (Tyler, 2004). Key to that process entails removing leaders who inhibit moral agency, whose leadership failures ignore unresolved transgressions, whose capricious and self-serving judgment not only makes the corrupt environment possible, but signals to others that turpitude is costless, and in some instances even virtuous (e.g., possessing utilitarian value). Electing sheriffs and appointing chiefs of police who meet MacIntyre’s challenge is a key to any organizational reform.¹⁸ On par with professional competence and intelligence, MacIntyre’s challenge may be the most important element in choosing or electing a law enforcement leader.

A future research question is whether tight-coupling (unitary form) or loose-coupling (multidivisional form) of organization can help to make a difference in answering MacIntyre’s challenge (see, e.g., Chandler, 1962; Williamson, 1975: 132–154).¹⁹ In other words, can organizational form as a variable effectively check executive and managerial discretion in ways that might help prevent the capture of the law enforcement organization by unethical leaders?²⁰

Footnotes

Author’s note

David Loomis and Steven Loomis are now both retired from their respective organizations.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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