Justice and Law: Comprehensive Study Notes

Class Exercise: Crime Severity Ranking

  • Activity Overview: Analysis of factors used to determine criminal severity by ranking twelve specific crimes in order of seriousness (11 being the most serious, 1212 being the least serious):

    • Death caused by DUI

    • Murder (drunken bar fight)

    • Solicitation of murder

    • Battery (Broken bones)

    • Embezzlement of $15,000

    • Tax evasion of $15,000

    • Shoplifting ($15,000)

    • Robbery ($15,000)

    • Toxic Waste damage (unknown damage)

    • Drug possession (shrooms)

    • Perjury

Core Principles and Themes of Justice

  • Justice vs. Goodness: What is just and what is good are not always the same.


  • Three Continuing Themes of Justice:

    • Fairness: Equal shares or equal treatment.

    • Equality: The same value, rights, or treatment between all in a specific group.

    • Impartiality: Related to fairness; defined as not favoring one party or interest over another.


Fairness, Equality, Impartiality Comparison Table

Historical Foundations and Philosophy of Justice

  • Greek Origins: The term justice is derived from Greek, where it originally referred to everything staying in its proper place.

  • Plato's Perspective:

    • Believed justice was achieved by maintaining the social status quo.

    • Classified justice as one of the four civic virtues:

      • Justice

      • Wisdom

      • Temperance

      • Courage

  • Aristotle's Perspective:

    • Believed justice was the fundamental basis of law, defining it as the unwritten customs of a people that distinguish between what is and is not honorable.

    • Maintained that a lack of freedom and opportunity for slaves and women did not conflict with justice, provided an individual was in the role for which they were naturally best suited.


Statue of Lady Justice holding scales

Distributive Justice Frameworks

  • Aristotelian Categorization of Justice:

    • Distributive Justice: Concerns what measurement should be used to allocate society’s resources.

    • Corrective Justice: Concerns unfair advantage or undeserved harm between people.


Distributive vs Corrective Justice Comparison Table

  • Scope of Distributive Goods: Justice involves the rightful possession of:

    • Economic goods: Income or property.

    • Opportunities for development: Education or citizenship.

    • Recognition: Honor or status.

  • Valid Claims to Possession: Need and desert.

  • Lucas's Criteria for Distribution (p. 46): Distribution can be based on need, merit, performance, ability, rank, station, worth, work, agreements, requirements of the common good, valuation of services, and legal entitlement.

  • Theories of Distributive Justice:

    • Egalitarian theories: Distribution should ensure equal shares for all. Equal pay for equal work.

    • Marxist theories: Distribution should be based on need (e.g., a person with two children needs more than a person with no children).

    • Libertarian theories: Distribution should take place without government interference. Vast disparities in economic remuneration are acceptable and left to the free market; high salaries promote competition, which promotes quality. (e.g., CEO compensation is 200 times that of the average worker).

    • Utilitarian theories: Distribution should maximize benefit for society; allows disparities if they contribute to the greater good.

John Rawls' Theory of Justice

  • Principles of Rawlsian Justice:

    • Each 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.

    • Social and economic inequalities are to be arranged so that they are both reasonably expected to be to everyone's advantage and attached to positions and offices open to all.

  • Veil of Ignorance: A heuristic device created by Rawls explaining that individuals will develop fair principles of distribution only if they are ignorant of their specific position in society.


John Rawls Portrait

  • Criticisms of Rawls' Theory:

    • The veil of ignorance cannot counteract human selfishness and self-interest.

    • Rawls' preference toward those who are least well-off is contrary to the good of society.

    • Rawls is wrong to ignore desert in his distribution of goods.

Corrective Justice and Substantive Justice

  • Corrective Justice: Justice that concerns occurrences of unfair advantage or unjust enrichment (either by contract disputes or criminal action) and what the appropriate remedy might be to right the wrong.

  • Substantive Justice: Concerns just deserts or what is fair and equitable (e.g., the appropriate amount of punishment for a crime, such as whether capital punishment is fair for murder). Requires punishment to be proportional to the degree of harm.

  • Two Major Philosophies of Corrective Punishment:

    • Retributive Justice:

      • Definition: The component of justice that concerns the determination and methods of punishments.

      • Core Principle: Balance and proportionality; the offender must suffer a pain or loss proportional to what the victim was made to suffer.

      • Rawlsian View: Retributive punishment is limited to what benefits the least advantaged (the offender is punished until the advantage changes and the offender becomes the least advantaged).

      • Mercy vs. Just Deserts: Historically, sanctuary allowed a person respite from punishment if they were within the physical confines of church grounds.

    • Utilitarian Justice:

      • Definition: The type of justice that looks to the greatest good for all as the end.

      • Core Principle: Only supports punishment if it benefits society by deterring offenders from future crime.

      • Key Philosophers: Cesare Beccaria and Jeremy Bentham.

      • Hedonistic Calculus: Measures the potential rewards of a crime so that the exact amount of threatened pain can be set to deter individuals from committing the crime.

Procedural Justice and Due Process

  • Distinction Between Law and Justice: Justice is the concept of fairness, whereas law is a formal system of rules and procedures used to determine guilt, decide punishment, or resolve disputes. "Moral rights" may differ from "legal rights," and "legal interests" may not be moral.

  • Key Procedural Legal Precedents:

    • Herrera v. Collins (1993)

    • In re Troy Anthony Davis (2009)

    • Holland v. Florida (2010)

  • Due Process: Constitutionally mandated procedural steps designed to eliminate error in any governmental deprivation of protected liberty, life, or property.

  • Essential Elements of Due Process:

    • Notice of charges

    • Neutral hearing body

    • Right of cross-examination

    • Right to present evidence

    • Representation by counsel

    • Statement of findings

    • Appeal

Wrongful Convictions and Systemic Bias

  • Significance: Wrongful convictions represent the ultimate failure of substantive justice and serve as a primary reason for public distrust in the criminal justice system.

  • Tracking and Support Organizations:

    • National Registry of Exonerations: Created jointly by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.

    • Innocence Project: An organization staffed by lawyers and students who reexamine cases and provide legal assistance to the convicted when there is a probability that serious errors occurred in their prosecution.

  • Cognitive Factors:

    • Confirmatory Bias: Fixating on a preconceived notion and ignoring other possibilities, such as focusing on a specific suspect during a police investigation.

  • Contributing Factors to Exonerations (Data from exonerationregistry.org):

    • Perjury or False Accusation: 64%64\%

    • Official Misconduct: 61%61\%

    • False or Misleading Forensic Evidence / Invalid Forensic Science: 29%29\%

    • Mistaken Eyewitness Identification: 27%27\%

    • False Confession: 13%13\%

    • Additional causes: Defense lawyers' incompetence / Bad lawyering, suppression of exculpatory evidence, and perjured informant/jailhouse informant testimony.


Percentage of Exonerations by Contributing Factor Bar Chart

Race, Ethnicity, and Justice

  • Systemic Disparities: Significant differences exist between Black and White individuals regarding perceptions of the criminal justice system. Race permeates the system through:

    • Disproportional representation of Black individuals in certain crime categories.

    • Racial profiling by police.

    • Lack of access to competent attorneys.

    • Disparate sentencing outcomes.

  • National Registry of Exonerations Findings:

    • Black individuals are approximately 77 times more likely to be wrongfully convicted of murder than White individuals.

    • There is a significantly higher likelihood of official misconduct by police or prosecutors when the wrongfully convicted person is Black.

    • Intersects with social movements such as Black Lives Matter.

  • Three Levels of Racism (Vaidyanathan, 2020):

    1. Individual Racism: Prejudice and discrimination based on concepts of racial superiority and inferiority.

    2. Institutional Racism: Inherent bias embedded within laws, policies, norms, and the culture of the criminal justice system (e.g., the War on Drugs leading to racial disparities in policing and mass incarceration).

    3. Structural / Cultural Racism: Structural and cultural factors existing outside the criminal justice system, including the culture of poverty, the stigmatization of Blackness, and disparities in healthcare, education, and employment.

Restorative Justice Movement

  • Definition: An approach to corrective justice that focuses on meeting the needs of all concerned.

  • Core Focus: Emphasizes compensation over retribution and returns focus to the rights and needs of the victim.


Restorative Justice Illustration

  • Three Central Propositions:

    1. Justice requires restoring victims, offenders, and communities who have been injured by crime.

    2. Victims, offenders, and communities should have the opportunity to be a fully active part of the justice process.

    3. Government should restore order, but the community should establish peace.

  • Community Justice: Part of a broader movement toward community empowerment and development.

  • Four Key Operational Models:

    • Victim-offender mediation schemes

    • Conferencing based on ancient indigenous concepts

    • Peace circles

    • Mechanisms addressing international crimes

  • Criticisms and Challenges:

    • Victims may feel pressured to forgive offenders before they are emotionally ready.

    • Can produce unequal or inconsistent punishments for identical offenses.

    • Supported ethically by the ethics of care, utilitarianism, and religious ethical frameworks.

Immoral Laws and Civil Disobedience

  • Characteristics of Unjust/Immoral Laws:

    • Deprive certain groups of liberty or grant differential rights and privileges.

    • Degrading to human dignity.

    • Discriminatory against specific groups.

    • Enacted by unrepresentative authorities.

    • Unjustly or arbitrarily applied.

    • Condemned by virtually all major ethical systems.

  • Civil Disobedience:

    • Definition: Voluntarily breaking established laws based on one's moral beliefs.

    • Nature of Act: A public, nonviolent, conscientious, yet political act contrary to law, usually performed with the specific intent of bringing about a change in government laws or policies.

    • Psychological Context: Supported by observations from the Milgram experiments regarding authority compliance and the widespread social misconception that law is synonymous with morality.

Questions & Discussion

  • Innocence Threshold: Is the incarceration of even one innocent person too much?

  • Prosecutorial Ethics Scenario:

    • Case Facts: A brutal murder prosecution lacking direct DNA evidence and eyewitnesses. State lab examiners fail to match a boot print left at the scene to the suspect's boot. An outside expert agrees to testify to a match, but the prosecutor learns this expert was sanctioned in another state for overstating qualifications and excluded elsewhere under legal standards for expert testimony.

    • Questions: Is there an ethical obligation to share this information with the defense? Should the prosecutor use this expert's testimony at all?