Ethical Considerations in Criminal Justice Research: Informed Consent and Confidentiality

The use of human subjects has become prevalent in criminal justice research, which presents myriad ethical concerns regarding the civil rights of vulnerable parties. In such studies, researchers maintain considerable, potentially dangerous, influence over participants due to their knowledge and perceived authority. This paradigm was presented in Milgram’s classic obedience experiments which affirmed the power of situational forces on human behavior. Consequently, human participants may be unnecessarily subjected to harmful situations due to improper research practices and ethical problems (Juritzen, Grimen, & Heggen, 2011; Mulvey & Phelps, 1988; Reeder, Monroe, & Pryor, 2008). However, Rhineberger (2006) concluded that discussions of research ethics were virtually absent from introductory criminal justice textbooks. On average, introductory criminology course materials dedicated only one page to ethical issues; none of which were covered in significant detail. This neglect of ethical considerations conveys that these topics are of little importance to criminological research. Ostensibly, these omissions appear to represent indifference among scholars and ethics committees and have exposed researchers to legal ramifications.

Citing a lack of adequate guidance, Bloomberg and Wilkins (1977) conveyed the need for professional societies to implement codes of ethics and corresponding sanctions relevant to human subject studies in criminal justice research. Specifically, the authors proposed standards which aimed to eliminate potential risks to participants through informed consent and confidentiality policies in order to combat the possibility of governmental intervention. Similar ethical codes were eventually adopted by the Academy of Criminal Justice Sciences and the American Society of Criminology. However, these policies have not effectively allayed the potential for conflict regarding evidentiary and testimonial privileges or addressed similar legal threats to confidentiality (Lowman & Palys, 2001). Given the difficulty of implementing comprehensive ethical research practices in the field of criminal justice, codified policies regarding informed consent and confidentiality are necessary to ensure the protection of both researchers and vulnerable subjects.

Historical Context

Most regard the protection from unnecessary risk as a fundamental human right. This precedent was affirmed on an international scale with the post-World War II adoption of the Nuremberg Code, which prohibits reckless and nonconsensual experimentation on human subjects (Kauzlarich & Kramer, 1998, p. 35). Accordingly, research subjects are afforded the discretion to divulge or omit personal information as well as refuse or submit to participation. Moreover, they must be properly informed of potential risks and the implications of consent (Bloomberg & Wilkins, 1977). However, informed consent requirements have historically been ignored by social agencies in experiments involving the use of prisoners and other “undesirables” whom criminal justice scholars routinely study.

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During the 1940s, researchers from the United States National Institute of Health deliberately infected over 1,400 Guatemalan prisoners, prostitutes, and mental health patients with various sexually-transmitted diseases in order to assess the effectiveness of penicillin treatment protocols (Reverby, 2011; Semeniuk, 2010). Similarly, over the course of a decade beginning in 1963, 131 convicted offenders under the custody of the Oregon and Washington State prison systems were exploited so that researchers could determine the effects of irradiation on testicular function (Kauzlarich & Kramer, 1998, pp. 132-140). Also during the 1960s, at least three separate psychotherapy research teams in the United States and the Netherlands administered psychedelic compounds such as LSD and psilocybin to inmates in unsuccessful attempts to modify behavior and reduce recidivism (Doblin, 1998).

Researchers also purportedly conducted experiments on prisoners which involved simulated explosive burns, the injection of live cancer cells, castration, and electric shock therapies. Though acts of fraud, assault, and murder are generally punished in accordance with the law, researchers who have engaged in these activities in the course of scientific inquiry have historically evaded sanction, largely due to their comparably heightened social status. While such extreme examples of disreputable medical studies are no longer common, due to subsequent government intervention in the 1970s, they serve as a reminder of the need for ethics policies and have revealed a general disregard for the rights of vulnerable research participants who have been stigmatized by the justice system. Nevertheless, the federal government recently considered revising the regulations which govern the use of prisoners as experimental subjects so as to make offenders more accessible to researchers (Richardson, 2009; Waltz, 2006).

Informed Consent

In order to legitimately obtain consent, researchers must provide subjects with an explanation of the experimental process; describe the discomforts, risks, and expected benefits; disclose advantageous alternative procedures; offer answers to procedural questions; and inform participants that they are free to withdraw from the study at will (Bloomberg & Wilkins, 1977, pp. 439-440). Most importantly, research participants must possess a demonstrable capacity to decide and submit voluntarily. Therefore, informed consent constitutes the delivery of this information to all research subjects so that they may knowingly and legally consent to participation in research studies free from duress, deception, or coercion (Erlen, 2010; O’Neill, 2003). However, controversy has surrounded the modern informed consent doctrine which began in 1957 with the California Court of Appeals decision in Salgo v. Leland Stanford Jr. University Board of Trustees and its detrimental impact on the fiduciary researcher-subject relationship (Berry, 2005). Criminal justice scholars are left to discern whether or not their subjects, some under custodial supervision, are able to legitimately volunteer themselves. Ensuring true comprehension and voluntary participation becomes even more laborious when research enters into different cultural settings, such as in state-crime studies of developing nations (Bhutta, 2004).

Ethical considerations regarding informed consent in criminal justice research are unique as punishment and treatment are often inextricably linked. Consequently, research participants may have already been labeled by the justice system and find it difficult to accept the objectivity and purported benefits of experimentation; which may compel them to withhold potentially damaging information. This trend is particularly pronounced in juvenile justice research. Moreover, subjects may be unable to provide legitimate consent due to potential coercion. Thereby, refusal to consent may negatively impact participants’ willingness to accept treatment as perceived by authority figures. Contrarily, subjects may misrepresent themselves during the course of a particular study in an attempt to improve their image in the eyes of justice administrators. This conflict is further exacerbated by the lack of definitive outcome assessments, which makes it difficult for researchers to present a realistic appraisal of risks and benefits (Mulvey & Phelps, 1988). Such ambiguity can expose researchers to legal repercussions for failure to provide full disclosure.

Confidentiality

Criminal justice research often requires respondents to disclose information relevant to criminal and subversive activity, some of which may remain unknown to authorities. Therefore, researchers are ethically obligated to protect their data so that it may not be used against participants in legal proceedings. If no such guarantee can be given, a study may be corrupted as vulnerable subjects refuse to disclose damaging information. Ergo, confidentiality is vital to ensuring the accuracy of criminological study. According to the respective ethics codes of the American Sociological Association and American Society of Criminology, confidential information provided by research participants must be protected by researchers even in the event that the information is not expressly governed by legal doctrine.Continued on Next Page »