Chapter objectives: 1. Know the definitions, concepts, and origins of justice 2. Understand the components of justice including distributive, corrective, and commutative. 3. Be able to define procedural and substantive justice. 4. Understand the difference between the utilitarian rationale and retributive rationale under corrective justice. Professionals in the criminal justice system serve and promote the interests of law and justice.
An underlying theme of this chapter is that the ends of law and justice are different—perhaps even, at times, contradictory. Although criminal justice professionals use the word justice all the time, it may be the case that they are not at all familiar with the philosophical foundations of the concept. This chapter discusses justice and Chapter 5 discusses the administration of law. ORIGINS OF THE CONCEPT OF JUSTICE •Definitions of justice include fairness, equality, impartiality, appropriate rewards or punishments. Justice should not be confused with “good. ” •Walsh said justice may be “hardwired” in humans (cheaters and suckers). •Justice concerns rights and interests more often than needs. •Justice originates in the Greek word dike, which is associated with the concept of everything staying in its assigned place or natural role. •Plato said justice consists of maintaining the societal status quo. Justice is one of four civic virtues, the others being wisdom, temperance, and courage •Aristotle distinguished distributive justice from rectificatory justice. Aristotle said the lack of freedom and opportunity for slaves and women did not conflict with justice, as long as the individual was in the role in which, by nature, he or she belonged. COMPONENTS OF JUSTICE •Distributive justice is the allocation of the goods and burdens of society to its respective members. •Corrective justice concerns the determination and methods of punishments. •Commutative justice involves transactions and interchanges where one person feels unfairly treated. •Three continuing themes in any discussion of justice are fairness, equality, and impartiality.
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DISTRIBUTIVE JUSTICE •Goods: economic goods, opportunities for development, and recognition •Two valid claims to possession are need and desert. •Lucas: need, merit, performance, ability, rank, station, worth, work, agreements, requirements of the common good, valuation of services, and legal entitlement. •The various theories can be categorized as egalitarian, Marxist, libertarian, or utilitarian, depending on the factors that are emphasized. •Sterba’s Distribution System includes oPrinciple of Need. oPrinciple of Appropriation and Exchange. Principle of Minimal Contribution oPrinciple of Saving •Exercise: How Much Are They Worth? •Exercise: Who Should Be Promoted? •John Rawls’s combines utilitarian and rights-based. He proposes an equal distribution unless a different distribution would benefit the disadvantaged. oEach person is to have an equal right to the most extensive total system of basic liberties compatible with a similar system of liberty for all. oSocial and economic inequalities are to be arranged so that they are both reasonably expected to be to everyone’s advantage and ttached to positions and offices open to all (except when inequality is to the advantage of those least well-off ). oRawls uses a heuristic device that he calls the veil of ignorance to explain the idea that people will develop fair principles of distribution only if they are ignorant of their position in society. •Criticisms of Rawls’ theory of justice include oThat the veil of ignorance is not sufficient to counteract humanity’s basic selfishness. oRawls’s preference toward those least well-off is contrary to the good of society. That it is wrong to ignore desert in his distribution of goods •The ethics of care is consistent with a Marxist theory of justice, since both emphasize need. •Utilitarian theories try to maximize societal good, so some balance of need and merit would be necessary to provide the incentive to produce. •Ethical formalism is solely concerned with rights; thus, issues of societal good or others’ needs may not be as important as the individual’s rights. •What is the relevance of distributive justice to criminal justice? oAppropriateness of affirmative action in hiring and promotion. How much to pay police officers compared to other professions. oConnection between distributive justice and corrective justice (Is poverty related to crime? To punishment? ). CORRECTIVE JUSTICE •Corrective justice is concerned with dispensing punishment. •Substantive justice involves the concept of just deserts, or how one determines a fair punishment for a particular offense. Procedural justice concerns the steps we must take before administering punishment. If you were being punished for a crime, would you rather receive a year in prison or fifty lashes? Why do we not use corporal punishment for criminal offenders? Do you think we should? Substantive Justice •Substantive Justice is just punishment is proportional to harm oThe victim is a peripheral figure, but punishment is measured by harm to victim and state. •Exercise: Determining Severity •Two philosophies are applied to how to punish: retributive justice and utilitarian justice. oRetributive Justice: (consider the following) •Balance and proportionality (lex talionis & lex salica). •Mens rea (intent) and capacity. Victim precipitation (but not who the victim is supposedly). •Rawls: only when punishment can be shown to benefit the least advantaged (the victim) can it be justified. •Mercy – different from desert. oUtilitarian Justice •Punishment is to deter offenders from future crime. •Caesare Beccaria & Jeremy Bentham (hedonistic calculus) •Measure to determine the amount of punishment needed to deter Procedural Justice •Law includes the procedures and rules used to determine punishment or resolve disputes. •The law is an imperfect system. “Moral rights” may differ from “legal rights,” and “legal interests” may not be moral. •Review Bill of Rights (what does it say about rights? Note: Amnd. 9 & 10). •Due process exemplifies procedural justice. oNotice of charges. oNeutral hearing body. oRight of cross-examination. oRight to present evidence. oRepresentation by counsel. oStatement of findings. oAppeal. •Illegal detentions? oClark v. Martinez, (2005) the Supreme Court held that the government may not “indefinitely” detain illegal immigrants, even if they have been found guilty of a crime. oHamdi v.
Rumsfeld, (2004), the Supreme Court held that an American citizen could not be held indefinitely as an “enemy combatant” without some form of due process. oRasul v. Bush, (2004), the Supreme Court held that those being held in Quantanamo Bay were subject to the laws of the United States and deserved some form of due process. oHamdan v. Rumsfeld, (2006), the Supreme Court held that Military Commissions established by President Bush did not provide sufficient due process. oBoumediene v. Bush, (No. 06-1195, 2008), the Supreme Court held that Military Commissions established by Congress did not provide sufficient ue process. •Is the right to be free from governmental deprivation of liberty without some finding of guilt a natural right or a legal right? •The exclusionary rule: rule or right? (apply utilitarian reasoning) oThe inevitable discovery exception. oThe good faith exception. oThe pubic safety exception. o(Rochin v. California, 343 U. S. 165 ) •Analyze this case under procedural and substantive justice: Federal law enforcement agents determine that a citizen of another country participated in a drug cartel that sold drugs in the United States.
A small group of agents goes to the foreign country, kidnaps the offender, drugs him, and brings him back to the United States to stand trial. Upon challenge, the government agents explain that, although these actions would have been unconstitutional and illegal against a citizen of the United States in this country, since they were conducted on foreign soil against a non-U. S. citizen, they were not illegal. •Let’s assume that in a civil dispute, one side has a very strong claim and would almost surely win in court, yet because the attorney missed a filing deadline, the judge throws out the case.
Do you believe this is fair? In a death penalty case, new evidence emerged that supported the defendant’s allegations of innocence, but the evidence was uncovered after the deadline for filing an appeal. Should the execution go forward? CONCLUSION •Justice is a philosophical concept concerned with rights and needs. Law is the administration of justice. •Justice can be further differentiated into distributive justice and corrective justice. •Corrective justice further divided into substantive and procedural issues. •Substantive justice is justified by retributive and utilitarian rationales.
Ethical Dilemmas Situation 1 You are serving on a jury for a murder trial. The evidence presented at trial was largely circumstantial and, in your mind, equivocal. During closing, the prosecutor argued that you must find the defendant guilty because he confessed to the crime. The defense attorney immediately objected and the judge sternly instructed you to disregard the prosecutor’s statement. While you do not know exactly what happened, you suspect that the confession was excluded because of some procedural error. Would you be able to ignore the prosecutor’s statement in your deliberations?
Should you? Would you tell the judge if the jury members discussed the statement and appeared to be influenced by it? Ethical Judgment: You should ignore the reference and decide based on the evidence and report any juror who did not. Moral Rules:One should always follow the law. After taking an oath, one should do one’s duty One should not hold oneself as more important than the law Ethical system: The moral rules above are consistent with ethical formalism and the categorical imperative which emphasizes duty and acting in a way that you would want people to always act.
Ethical system: Act utilitarianism might be able to justify considering a confession if there was overwhelming evidence of guilt and only for that one case. On the other hand, rule utilitarianism would be closer to ethical formalism because if jurors routinely ignored the rules of the court and the judge’s instructions, it would be a negative consequence for us all. Classroom Assignments 1. Have students get into groups and complete the exercises in the chapter. 2. Read The Merchant of Venice and discuss how Shakespeare views justice. 3. Read any of the cases cited and discuss how the Supreme Court views procedural justice.
Exercise 1. How Much Are They Worth? Determine the fair salary for these professions and occupations. Propose an average salary, balancing such factors as seniority and education. Nurse:Electrician: Elementary schoolteacher:Sanitation worker: Police officer:Prison guard: Probation officer:College professor: Software engineer:City council member: Lawyer:Secretary: Judge:Wait staff: Now compare your responses to those of others. Is there general consensus on salaries for these positions? Compare your responses to published figures (you can find this information in a library or at the career center of your university).
Exercise 2. Who Should Be Promoted? You are on a promotion committee to recommend to the chief of police a candidate for a captain’s position. All are lieutenants and have received similar scores on the objective tests available for the position. The candidates: 1. A thirty-nine-year-old woman who has been with the police department for nine years. She has obtained a college degree and a master’s degree by going to school at night. She has spent relatively little time in her career on the street (moving quickly to juvenile, community service, and DARE positions). 2.
A forty-six-year-old white male who has also had experience in command positions in the army before joining the police force. He has fifteen years of experience—all in patrol positions—and has a college degree. 3. A forty-year-old Hispanic male with ten years of experience. He has been very active with the community. Several community groups have endorsed him, and they demand that there be Hispanic representation on the command staff. He also has strong support among Hispanic officers, serving as their association president. He has a two-year college degree. Whom would you endorse? Why?
If you need more information, what type of information would you want? Exercise 3. Determining Severity Rank the following crimes in order of seriousness, with 1 being the most serious and 14 being the least serious. Compare your rank orderings with those of others. sexual assault (with force) death caused by drunken driving embezzlement of $15,000 tax evasion of $15,000 shoplifting ($15,000) assault (broken bones) robbery of $15,000 sexual molestation (no penetration) toxic waste dumping (unknown damage) murder (during barroom brawl) drug possession (marijuana) perjury murder in heat of passion solicitation of murder