Chapter 6 Notes: The Justice in Criminal Justice
6.2 The Justice in Criminal Justice
Focus: How is justice defined, and how do definitions shape preferred criminal justice systems and policies?
FOCUSING QUESTION 6.2: In what ways has justice been defined?
Quote to emphasize value: Daniel Webster—“Justice … is the great interest of man on earth. It is a ligament which holds civilized beings and civilized nations together” (1914, p. 533).
Historical context illustrating the value of justice in American history:
Declaration of Independence framed the Revolution as partially arising from Great Britain being “deaf to the voice of justice.”
The Civil War centered on the injustice of slavery (Stampp, 1991).
Late 20th/early 21st centuries: debate over using American military force to address injustices abroad (human rights concerns).
Important implication: the decisions we make about criminal justice reflect our ideas about justice; the type of system we prefer is shaped by what we see as just or unjust.
Conceptual trouble spots: some discomfort with policies/actions but difficulty pinpointing why they feel wrong. Distinguishing sources of discomfort helps with evaluation.
Three major justice perspectives introduced (to structure analysis of concerns):
Procedural justice: justice is achieved when proper procedures are followed. Key question: what are the proper procedures? In the American system, proper procedures are those defined in the Constitution, the Bill of Rights, court decisions, and legal codes. Chapter 9 covers various forms of procedural justice.
Social justice: justice as equality; focus on equal treatment in society and in the criminal justice system; concerns about discrimination by race, gender, class, sexual orientation, age, religion, disability, etc. (Arrigo, 1999b). Chapters 7 and 8 cover social justice.
Individual justice: the focus of this chapter; outcomes for individuals; emphasizes whether the results for the victim and offender are just for those individuals, not just group equality or procedural correctness. The chapter will describe four perspectives that shape how individual justice can be understood and implemented: vigilante justice, ideological justice, discourse perspective justice, and postmodern justice. After these, distributive justice is discussed as arguably the most significant perspective.
Four perspectives on individual justice (each offers a distinct way to conceptualize what criminal justice should mean):
Vigilante justice (vigilantism)
Ideological justice
Discourse perspective justice
Postmodern justice
After presenting these, the chapter turns to distributive justice as a central concern of the criminal justice system.
Vigilante Justice (overview): taking the law into one’s own hands, bypassing police, courts, and corrections. Common motives include protecting persons or property; sometimes there is no established system (e.g., early American West) or lack of confidence in the system.
Forms of vigilante justice that operate within the law:
Guardian Angels (founded 1979) in NYC subway system: unarmed, citizen volunteers conducting patrols; reduced fear of crime, reduced some crime frequencies, provided role models for at-risk youth; operate within legal means (research: Pennell et al., 1989).
Vigilantism can also be used to subjugate marginalized groups (e.g., Black, Indigenous, immigrant, undocumented populations).
Trayvon Martin case: 17-year-old Black youth accosted by George Zimmerman; Zimmerman’s 911 call followed by confrontation; stand-your-ground defense used; case illustrates how vigilante actions can be legally questionable and socially charged.
Vigilantism can be tacitly approved by some criminal justice actions (e.g., border vigilantes stopping undocumented crossings).
May 2009: Shawna Forde-led anti-immigrant militiamen in Southern Arizona committed a double murder while intending to rob a drug dealer; FBI tip-off occurred but action was not stopped (Strickland, 2022).
Case: Michael and Mark Sheppard (Texas detention facility warden and brother) charged with manslaughter for shooting at migrants; one fatality and another wounded (Killough et al., 2022).
Modern technology enables cyber vigilantism: internet as a norm-enforcement tool; websites for shaming; public discourse via online formats; returns to public shaming in a digital era (Solove, 2007).
Risks of virtual vigilantism:
Wrongful censure, permanent labeling, bullying, or retaliation (Solove, 2007).
Cyber vigilantism can also involve cybercrime monitoring; multi-national self-policing of online spaces; multiple models of operation (Chang et al., 2018).
Core issue: vigilante justice that uses illegal means is problematic; the criminal justice system does not recognize a right to revenge or to use illegal means; crimes are offenses against the state and should be prosecuted by the state.
Ideological Justice (overview): justice is achieved when government policy reflects one’s preferred ideology. Ideology is a worldview; different ideologies claim that justice follows when laws/policies reflect that worldview.
Libertarianism: justice best achieved by protecting individual rights (esp. property) with minimal government; minimal government services; objections to laws restricting private rights (seat belt laws, drug prohibition, obscenity regulation, high taxes). Ideology posits that intrusive government policies are unjust because they interfere with private property/rights.
Socialism (democratic socialism): justice best achieved with a larger government that manages public ownership and broad services; high taxes to promote redistribution and equality; government-provided drug rehabilitation, public education, and reduction of wealth inequality are argued as justice.
Other ideologies exist; the common theme is that the ideology shapes one’s conception of justice.
Discourse Perspective Justice (Habermas): emphasis on dialogue about how justice ought to be conceived. Not the philosopher’s dictating justice, but the public engaging in discourse to determine acceptable norms and principles of justice.
Core ideas: open communication; discussions must be logical and ethical; aim for consensus rather than stalemate; community reasoning aloud through discourse (Hudson, 2003).
Minimal procedural requirements to enable discourse: symmetry (equal rights in discourse) and reciprocity (attend to others’ views/claims) (Hudson, 2003).
Discourse can occur in public forums (mass media) or within smaller communities (schools, organizations). Examples include peacemaking criminology in schools (Pepinsky, 1999b) and police–community collaborations in community policing (Skogan & Hartnett, 1997).
Goal: open dialogue leads to better justice outcomes and fair treatment for all.
Postmodern Justice: understanding that there are many distinct, equally valid realities created by diverse cultures and times; different people create their own narratives of what is real, and those narratives influence judgments about justice.
Implication: there is no single, universally accepted definition of justice; debates revolve around differing narratives and the need to understand others’ perspectives to resolve conflicts.
Practical example: two witnesses may report different versions of the same event; truth may be secondary to what each person believes happened; professionals must resolve accounts to pursue justice.
Summary of the four perspectives: vigilante (public/publicized action), ideological (policy guided by ideology), discourse (consensus through dialogue), postmodern (multiple, valid realities). Each offers insights but none alone provides complete guidance.
Transition to distributive justice: among the many theories, distributive justice is central to understanding how to allocate police stops, arrests, verdicts, and sentences in ways that society deems legitimate.
Focus questions tied to the four perspectives: strengths/weaknesses, alignment with personal definitions of justice, and applicability to case scenarios (e.g., sexting case).
6.3 A Focus on Distributive Justice
Focus: distributive justice = how to distribute the rewards/punishments/outcomes of the criminal justice process to those who commit offenses.
Core idea (David Schmidtz, 2006): justice concerns what people are due; “what people are due” equates to what they deserve in the eyes of justice; this aligns with the just world hypothesis.
Key questions in criminal justice distributive justice:
Who is due what (the “who” and the “what”)? Identifying prohibited acts, the offender, and the corresponding punishment or sanction.
How to distribute the outcomes of justice processes (police stops, arrests, verdicts, sentences) so they are legitimate and socially recognized as fair.
End result concept: distributive justice is about the distribution of outcomes (stops, arrests, verdicts, sentences) to those who commit illegal acts.
Four distributive justice models (Aristotle, Bentham, Retributive, Restorative, plus Rawls’s fairness framework) and their focal points:
A Classic Approach: Aristotle’s Commutative Justice
Proportionality: what is just is what is proportionate; unjust = violation of proportion.
Applies to both voluntary exchanges (prices) and involuntary exchanges (punishments).
If punishment is proportional to crime, justice is achieved; proportionality also studied further in Chapter 11 (punishment).
An Economic Approach: Bentham’s Utilitarian Justice
Core question: what produces the greatest happiness for the greatest number?
Method: cost–benefit analysis; steps: (1) identify costs, (2) identify benefits, (3) compare sums. If benefits exceed costs, action is just.
Practical measurement: costs/benefits can be monetary and non-monetary (pain, fear, productivity losses, etc.).
Example (Cohen, 1988): average cost of a robbery = ; inflation-adjusted ~ . Extending robbery sentence by 10% costs ~ ; benefits from prevented crimes ~ ; thus the additional punishment would be unjust by cost–benefit standards.
Note: cost–benefit analysis is complex due to what counts as costs/benefits (lost productivity, public safety, victim impacts, social effects). Some argue that it should be used as a metaphor rather than pure numbers, recognizing value judgments in determining what counts as “the greatest happiness.”
Retributive Justice
Core idea: offenders deserve punishment; justice = punishment deserved due to the offense.
Retributivism focuses on desert; it often excludes prevention or rehabilitation as primary goals.
Public support for retribution tends to be higher when offenses trigger moral outrage; less support when harm results from negligence or accidents.
Historical roots: Plato; ongoing debate with restorative justice.
Restorative Justice
Expands distributive justice beyond the offender to victims and the community; emphasizes healing and repairing harms.
Mechanisms to restore include:
Sincere apology by offender or victim; apologies can reduce legal actions in some cultures (Lazare, 2004; Haley, 1986).
Mediation: trained mediator facilitates dialogue between victim and offender; often yields positive results (Hansen & Umbreit, 2018), depending on crime severity and willingness to participate.
Sentencing circles: multiple parties (offender, victim, families, community) discuss and negotiate an appropriate outcome; evidence suggests they reduce subsequent offending (Sherman et al., 2015; Sentencing circles n.d.).
Restorative approaches are promising especially for youth/minor offenses (Latimer et al., 2005; Bonta et al., 2006; Wong et al., 2016).
Compensatory approach: victims’ funds and direct offender compensation to repair physical/financial damages.
Is It Fair? Rawls on Justice (Box 6.2)
Rawls defines justice as fairness; fairness is a prerequisite to justice.
Core tool: veil of ignorance and original position; decision-makers do not know their own background (gender, race, wealth, etc.) so they choose principles without self-interest.
Rawls’s principles (as applied to society):
Principle 1: Equal basic rights and liberties for all (liberty for all).
Principle 2: Social and economic inequalities are permissible only if they benefit the least advantaged and are attached to offices/open to all (fair equality of opportunity).
Real-world connection: Gideon v. Wainwright (1963) guaranteed counsel for indigent defendants; Argersinger v. Hamlin (1972) extended that right to all crimes with possible jail time.
Box 6.3 (Equality of Opportunity) presents a case (Jordan v. City of New London, 1999): whether denying a high-scoring candidate from employment based on test score ranges violates equal opportunity.
Facts: plaintiff scored 33 on a written test; New London limited applicants to 20–27; plaintiff sued claiming equal opportunity violation.
Court ruling: city’s reasons to deny based on test range were rational (to manage pool of applicants; overeducation may lead to turnover). The decision was framed around efficiency and management of personnel; debate about how this aligns with Rawlsian fairness.
Discussion prompts include: would you rule differently; compare to your definition of justice, fairness, and equality of opportunity; evaluate strengths/weaknesses of each theory; consider implications for policy and practice.
Box 6.3 prompts and discussion questions encourage applying Rawls and equality of opportunity to real cases and to assess how different distributive theories would address cases such as the sexting case described at chapter opening.
6.4 Individual and Community Interests in Distributive Justice
Guiding question: In distributive justice, how can individual needs be balanced with society’s needs?
Discretion and variation:
Discretion is central in policing, probation, and across the criminal justice system; variations in enforcement lead to different outcomes for the same situations (Muir, 1977; Seiter & West, 2003).
Locality matters: laws and enforcement intensity vary by state, county, and town; balancing individual vs community interests depends on context.
Important framing questions:
What is best for the individual?
What is best for the community?
Whose interests should receive the most attention, and how should they be balanced?
The distribution of justice outcomes is often depicted along two dimensions: individual needs and societal (community) needs, forming a two-dimensional perspective on distributive justice (Figure 6.2 in the text).
Four distributive justice models (from Blake & Mouton, 1964; applied to criminal justice): Mechanical, Authoritarian, Compassionate, Participatory. Each model has a focal point and represents a different way to resolve conflicts and distribute outcomes. They are not mutually exclusive and may apply differently across cases.
Mechanical Criminal Justice
Focus: neither on society’s needs nor on the individual’s needs in a substantive way; primarily on maintaining the system and following the code.
Core idea: simply enforce the written laws; little or no discretion; processes matter more than outcomes.
Mode of operation: assembly-line justice; emphasis on efficiency and docket clearance, especially for less serious offenses (barroom brawls, domestic disputes, petty theft, drug possession, prostitution).
Description: lower courts are fast-paced, chaotic, and rely on shorthand/rapid decisions; the motto: The Process Is the Punishment (Feeley, 1992).
Authoritarian Criminal Justice
Focus: the needs of society; obedience to established authorities; prioritizes outcomes over process.
Core ideas: authority (legislatures, police, courts) decides targets and outcomes; dissent or nonconformity is ostracized; rights and procedural protections are viewed with skepticism or as obstacles.
Implications: harsh enforcement of drug laws; rights of searches, seizures, interrogations, and trials may be compromised to achieve desired outcomes (e.g., drug eradication).
Political role: politicians as authorities shape public opinion and policy; statements by presidents/governors/mayors can influence public views and policy adoption; symbolic value statements can reflect justice theory without detailed policy proposals.
Compassionate Criminal Justice
Focus: the needs of the individual while recognizing societal needs; aims to prevent crime and rehabilitate offenders by addressing underlying issues.
Key ideas: prevention (anticipating needs that lead to delinquency) and rehabilitation (addressing offender needs to reduce recidivism).
Approach: requires partnerships with non-criminal-justice fields (psychology, education, social work) to design and implement preventive and rehabilitative programs.
Distributive justice lens: tailor outcomes to individual needs and to offender rehabilitation; justice is achieved when individual needs are addressed to reduce future crime.
Participatory Criminal Justice
Focus: both societal needs and individual needs; emphasizes collaboration and shared responsibility.
Definition of success: harmony between society and individuals; mutualization (meeting multiple needs simultaneously).
Example: community policing, where police and community partners identify issues and work together to address them; law reflects broad input from public, legislators, and professionals.
Strengths: can enhance legitimacy, trust, and accountability; fosters public-buy-in and problem-solving.
Challenges: facilitating meaningful dialogue among diverse stakeholders; balancing multiple viewpoints; deciding who should make final decisions when consensus is not reached.
The four models illustrate that distributive justice can be approached in different ways depending on context, values, and policy goals. Some cases may align more with a particular model; others may require blending approaches.
Toward Justice (concluding synthesis): justice is a dynamic concept with multiple, sometimes conflicting, definitions. The chapter encourages ongoing reflection on what justice means, how it relates to various theories, and how it can inform policy and practice. Understanding these theories helps identify common ground and areas of disagreement, guiding ethical and effective practice in criminal justice.
Box 6.4: Research in Action—Pursuing Justice (historical and contemporary reflections)
Lyndon Johnson’s 1965 Commission on Law Enforcement and Administration of Justice, which produced a 1967 report with over 200 recommendations for crime reduction and justice improvement.
2017 Criminology and Public Policy issue revisited these findings, highlighting ongoing debates in key areas:
Law Enforcement: concerns about fairness, legitimacy, police–community relations; domestic violence responses; victim needs across the system (Skogan, 2018; Belknap & Grant, 2018).
Courts: concerns about judge selection, discretion, sentencing; calls for guidelines and alternatives to formal prosecution (Spohn, 2018; Tonry, 2018).
Corrections: emphasis on evidence-based practices and alternatives to incarceration; reducing reliance on sanctions where possible (MacKenzie & Lattimore, 2018).
Juvenile Justice: risk factors, effective interventions, and multi-agency coordination (Lane, 2018).
Race: need for frank examination of race, ethnicity, crime, and treatment in the justice system (Fernandes & Crutchfield, 2018).
Technology: role of information technology and data in justice operations; opportunities and policy implications (Blumstein, 2018; Wormeli, 2018).
Policy Issues: drug policy in flux, gun policy polarization, mental health, immigration, cybercrime, white-collar crime; ongoing need for research and reform (Pardo & Reuter, 2018; Cook, 2018; Gest, 2018b).
Guiding questions for readers to connect theory to real policy:
Which theory(s) of justice align with each recommendation from the 1967 Commission and the subsequent analyses?
Do these recommendations reflect your own definition of justice? Would you modify or add any recommendations? Why?
Should there be a new national commission to study the U.S. criminal justice system? What would be its benefits and limitations?
What are the benefits, disadvantages, and consequences of each distributive justice model? Is one preferable?
Should all parts of the system (police, courts, corrections) subscribe to the same model of justice, or should different models apply to different components? Why?
How would each distributive justice model apply to the sexting case introduced at the chapter’s opening?
Toward a synthesis: key takeaways for exam preparation
Justice is multi-faceted and defined through procedural, social, and individual lenses; distributive justice ties these concepts to the allocation of sanctions, remedies, and reforms.
Four perspectives on individual justice (vigilante, ideological, discourse, postmodern) offer distinct lenses on what justice should look like in practice.
Distributive justice (Aristotle, Bentham, Retributive, Restorative, Rawls) provides concrete frameworks for evaluating and guiding how outcomes (stops, arrests, verdicts, sentences) are allocated.
Real-world applications and debates—such as the effectiveness and fairness of vigilante actions, the ethics of cost–benefit analyses, and Rawlsian equality of opportunity—shape policy discussions and reform efforts.
Understanding the models of distributive justice (Mechanical, Authoritarian, Compassionate, Participatory) helps explain why some systems prioritize speed and procedure, while others emphasize outcomes, individual needs, or community collaboration.
Historical and contemporary critiques (1967 Commission, 2017 updates) show how justice theories translate into policy recommendations and reform agendas.
Exam-style prompts to study:
Compare strengths/weaknesses of each theory of justice presented in this chapter.
Assess how a given case (e.g., sexting case) would be addressed under each distributive framework.
Explain Rawls’s veil of ignorance and its implications for fairness and equality of opportunity.
Discuss the role of discretion and locality in distributive justice outcomes.
Evaluate the potential benefits and drawbacks of participatory criminal justice in fostering legitimacy and trust within communities.
Box 6.2 Justice as Fairness (Rawls) – quick reference
Veil of ignorance concept: decide justice rules without knowing personal attributes (gender, race, wealth, status, etc.).
Original position: starting point for choosing principles that would govern society.
Rawls’s two principles:
Equal basic rights and liberties for all.
Social and economic inequalities are permissible only if they benefit the least advantaged and are attached to offices/open to all under fair equality of opportunity.
Box 6.3 Equality of Opportunity – quick reference
Case: Jordan v. City of New London (1999): test-score range policy (20–27) denied a candidate with a score of 33; debate about equality of opportunity.
Court reasoning: rationales included managing applicant pools and preventing overqualification from leading to turnover; questions for evaluating fairness and opportunity.
Discussion prompts emphasize aligning court decisions with Rawlsian fairness and equality of opportunity.
Box 6.4 Research in Action: PURSUING JUSTICE – quick reference
1965 President’s Commission on Law Enforcement and Administration of Justice (1967 report) and its enduring relevance.
2017 Criminology and Public Policy issue revisits recommendations and tracks ongoing debates across five domains: law enforcement, courts, corrections, juvenile justice, race, technology, and policy.
Discussion prompts invite critique of traditions and contemporary reform priorities, and how different justice theories align with proposed reforms.
Notes on exam-ready contrasts and connections
Procedural justice vs distributive justice: procedural justice concerns the fairness of processes; distributive justice concerns the fairness of outcomes and distributions of punishments, resources, and opportunities.
The four justice perspectives (vigilante, ideological, discourse, postmodern) each offer either a normative stance (what justice should be) or a descriptive lens (how justice is perceived/experienced) and can influence policy preferences.
Restorative justice often complements retributive systems and can be applied to youth offenses; it emphasizes accountability, repair, and reconciliation, while also addressing harms to victims and communities.
Rawls provides a baseline for fairness that can be operationalized in policy decisions (e.g., right to counsel, equal opportunity in employment), even when public opinion or political expedience pressures otherwise.
The distributive justice models (Mechanical, Authoritarian, Compassionate, Participatory) illustrate that justice can be pursued through different logics: rule-following alone, power-driven enforcement, individualized rehabilitation, or collaborative governance. Real-world systems may combine elements from multiple models, and the appropriateness of each model can depend on the case context and societal values.