Social Justice, Criminal Justice

The Role of American Law in Effecting and Preventing Social Change

Cyndy Caravelis, Matthew Robinson

• Éditeur: Routledge
• Année: 2015
• ISBN:
  9781317297994
• Édition: 1
• Sujet: Law
• Sous-sujet: Criminal Law

Social Justice, Criminal Justice is a thought-provoking examination of the U.S. legal system, focusing on how criminal justice and social justice are related. The book provides a solid foundation of key philosophical and theoretical issues and goes on to examine the function of the law as it relates to social justice issues. The authors present and explain the foundational legal documents of the United States, and critically examine how those same documents, which espoused the rhetoric of equality for all, contribute toward the perpetuation and maintenance of a system of exclusion for groups with minority status, such as racial and ethnic minorities, the poor, women, and the LGBT (lesbian, gay, bisexual, transgender) community.

Succinct but comprehensive, this text offers a careful examination of possible relationships between social justice theory and criminal justice practice and illuminates the role that the legal system has played in both preventing and assisting social change and power dynamics. For each identified group, important landmark court decisions are used to demonstrate the plight of the powerless and the quest for equal rights. The book provides an important perspective and understanding of the relationships among criminal justice, social justice, and the law. Suitable for undergraduate and early graduate courses in Social Justice, Justice Studies, Critical Issues, Ethics, and American Government and Law, this text provides easily digestible content for those interested in thinking critically about the U.S. legal system.

1

WHAT ARE JUSTICE AND SOCIAL JUSTICE?

The American people have this lesson to learn, that where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob, and degrade them, neither persons nor property would be safe.

Frederick Douglas, 1886

Just about everyone believes in justice. Yet, people sometimes disagree about what justice means. The opposite of justice—injustice—may be easier to understand, because we know it when we see it. The quote above from Frederick Douglas, former slave and famous abolitionist, speaks to a form of injustice that Americans increasingly reject, as our society and its people progress across time. America has been, and is increasingly becoming, not only a tolerant nation, but one that embraces all people, regardless of class, race, ethnicity, gender, religion, sexual orientation, and so forth. Yet, clearly there is much work left to be done.

This book is about justice and its opposite—injustice. In it, we identify ways in which American society generally, and criminal justice agencies in particular, strive to be just and eradicate injustice. We also show ways in which both sometimes fall short of our ideals of justice, remaining unjust and even at times reinforcing injustice. So this book is about relationships between criminal justice and social justice.

In this chapter, we define some of the key terms used throughout the book, including justice, criminal justice, social justice, and human rights. Further, we outline major theories of justice that are applied to criminal justice practice later in the book. These theories include utilitarianism, libertarianism, egalitarianism, and virtue-based theories. Since we apply these theories to various topics throughout the book, it is important to understand their meaning. The main purpose of this chapter is to introduce you to the topics of social justice and criminal justice.

Activity 1.1 Justice and Injustice

What does the term justice mean to you?

What about injustice?

How would you define these terms?

What Is Justice?

The answer to the question of “what is justice” depends on who is being asked. For example, to a person who has been harmed by another (e.g., a crime victim), justice may be about holding the guilty accountable—making sure he or she is punished in order to achieve retribution. Retribution is often associated with punishment of criminals and generally means giving people what they deserve based on the harms they cause. For example, one form of retribution is capital punishment, reserved exclusively in practice for those convicted of murder. When a murderer is executed, it is a statement by society that taking a life demands the sacrifice of the killer’s life as a form of retribution; think of it as a payment made by the offender to right the wrong he or she committed (Kant, 1887).

We can call the form of justice rooted in retribution retributive justice, which generally means punishing an individual who commits a crime. Retributive justice assures that victims of crime are served by their government.

Yet, to a person who has been arrested and who might be facing a criminal trial, justice may be more about being treated fairly by agencies of criminal justice and having his or her rights protected. As citizens of the United States, people are granted numerous rights, most notably from the Bill of Rights of the US Constitution. Examine the rights granted to us in Table 1.1.

Notice that, of these rights, Amendments IV, V, VI, and VIII have the most relevance for criminal justice. The Fourth Amendment grants you the right to be protected from unreasonable searches and seizures by the police and requires them to get a warrant based upon probable cause in order to search or seize you or your property. The Fifth Amendment guarantees you due process of law, meaning that, for you to be held and prosecuted for a crime, the government must follow the rules of procedure as established by the US Constitution and upheld by US courts. Specific rights granted by this Amendment include the right to a grand jury hearing, freedom from double jeopardy (meaning you cannot be tried twice for the same offense), freedom from self-incrimination (meaning the government cannot coerce you to testify against yourself so that you have the right to remain silent), and the right to just compensation for government seizure of your property.

The Sixth Amendment gives you the rights to notice of any criminal charges against you, speedy and public trials, and impartial juries. It also guarantees you the right to confront witnesses against you, to offer witnesses on your behalf, and to be granted an attorney to assist you with your defense. Finally, the Eighth Amendment bans excessive bails, excessive fines, and cruel and unusual punishments.

The form of justice rooted in due process of law is commonly referred to as procedural justice, which generally means assuring fairness in the criminal justice process by protecting people’s rights as they are processed through the system of police, courts, and corrections. Procedural justice assures that people accused of crime are served by their government.

TABLE 1.1 The Bill of Rights

The criminal justice system, as you will see, tries to achieve both of these justice-related goals—holding the guilty accountable for the harms they inflict on others (i.e., retributive justice) while simultaneously treating people fairly by protecting the rights they enjoy as American citizens (i.e., procedural justice). The scales of justice, illustrated in Figure 1.1, are kept in balance when the rights of victims and the rights of defendants are both served by criminal justice agencies concerned with retributive justice and procedural justice. Yet, these goals often conflict, meaning that Americans ultimately have to choose which goal is more important to them and thus worthy of greater emphasis (Robinson, 2009).

In addition to these conceptions of justice, there are also broader definitions of justice which focus on issues other than crime and outside of the criminal justice system. As you’ll see later in the chapter, there are theories of justice that highlight other issues, including happiness or utility, liberty or freedom, equality or egalitarianism, and virtue or morality. Given the focus of this book on links between social justice and criminal justice, first it is important to briefly discuss the concept of criminal justice.

What Is Criminal Justice?

Criminal justice is a term that describes the efforts of government agencies at the local, state, and federal levels to reduce crime and achieve justice for crime victims (retributive justice) while also protecting the due process rights of criminal defendants (procedural justice). These agencies include lawmakers, police, courts, and correctional facilities (Lab, Williams, Holcomb, Burek, King, & Buerger, 2010).

The criminal justice system is the term used to describe the work of these agencies, whereby the:

• Law defines harmful acts as crimes, specifies possible punishments, and sets forth rules of due process that must be followed by police, courts, and corrections;

• Police investigate alleged crimes and apprehend people suspected of breaking the law;

FIGURE 1.1 Scales of Justice.

• Courts determine the legal guilt of those accused of crimes and sentence those found guilty to some form and term of punishment;

• Correctional agencies carry out the punishment determined by the courts.

Although each of these agencies of criminal justice clearly has its own goals, they are also expected to work together to achieve common goals of larger society. These include crime control and due process. Crime reduction refers to all the efforts of criminal justice agencies to reduce crime, including arresting and prosecuting alleged offenders, convicting and punishment the guilty, and preventing crime in the first place (e.g., directed police patrols in areas where crime is likely to occur). Crime control is generally aimed at achieving the goal of retributive justice.

Due process refers to all the efforts of criminal justice agencies to make sure that an individual’s Constitutional rights are protected as a person is processed through the system, or to make sure that we achieve procedural justice (David & Bruce, 2012). These rights were illustrated in Table 1.1. Because of due process, police, courts, and correctional agencies are not only charged with trying to reduce crime in society, but they must do so in ways that protect our rights. That is, they cannot violate your rights established by the US Constitution when trying to gather and present convincing evidence of your guilt for crimes with which you are charged.

Yet, exceptions are often granted to criminal justice agencies when dealing with criminal suspects as well as those convicted of crimes, in the name of public safety. For example, police can search a person or his or her property without a warrant in numerous circumstances including when there are exigent circumstances; courts can convict someone without a trial if a defendant waives his or her right to one; correctional agencies can restrict the speech, movement, and possessions of offenders in the name of the safety of officers working in jails and prisons (Chemerinsky, 2009). So, while these rights are not absolutes, the point is that citizens of the United States are entitled to due process, which assures them some measure of protection against their own government.

Both crime control and due process are valued by Americans. This reality is captured nicely in the very symbol we commonly use to depict American criminal justice—Justitia, or the lady justice—shown in Figure 1.2. Although the meaning of the symbols in the figure is debatable, people generally equate the sword held by Justitia with crime control (i.e., punishment or retributive justice) and the blindfold with due process (i.e., fairness or procedural justice). Further, the scales are most often thought to represent balance; in the American justice system, this could be seen as an indication that society has a vested interest in both retributive justice and procedural justice and that it is in the interest of justice not to emphasize one form of justice at the expense of the other.

Here, considering two fictional models of justice can help us understand this issue better. In 1968, Herbert Packer published his book, The Limits of the Criminal Sanction. In it, he presented two models of criminal justice as ideals of two different conceptions of justice, one focused on retributive justice and the other on procedural justice. Packer attempted to describe two polar extremes—one model most concerned with maintaining order in the community by reducing crime in order to provide justice for victims and the other with preserving individual rights in order to provide justice for defendants. Packer’s purpose in creating these models seems to have been to pose a challenge for citizens to decide which model they liked best and wanted their real criminal justice system to be most like (Packer, 1968).

FIGURE 1.2 Justitia, the Lady Justice.

Table 1.2 depicts these models at opposite ends of a continuum. On one extreme, the crime control model aims to protect the community by lowering crime rates, even if it means that innocent people are sometimes wrongly convicted of crimes. The crime control model tries to protect people from criminals by assuring high conviction rates. It does this by relying on informal processes such as plea bargaining (when a prosecutor and defense attorney agree out of court to an appropriate sentence for an accused criminal) to expedite criminal justice operations rather than slower and more costly criminal trials. So, very few criminal trials are held, because they are expensive and unnecessary for establishing legal guilt.

Efficiency is the most important value of the crime control model, for it is imperative that the criminal justice system operates as quickly as possible in order to keep up with the large numbers of criminal cases that enter it each day. Packer’s metaphor for this model was an “assembly line” because individual defendants would be quickly processed through the criminal justice system outside of the courtroom through plea bargaining rather than criminal trials.

TABLE 1.2 Crime Control and Due Proc...