Capstone DOC Outline ?Prior to beginning work on this assignment, read Chapters 2, 7, and 9 from the text. ?Looking ahead at your Capstone Pa per in Week 5, provide an outline highlighting

7

Social Justice Overview

Learning Objectives

After reading this chapter, you should be able to:

• Define the term justice, and evaluate how it relates to the concepts of equality, solidar- ity, and human rights.

• Explain the concept of individual justice, including examples of restorative, ideological, and distributive justice.

• Explain the concept of procedural justice, including examples of perfect, imperfect, and pure procedural justice, as well as procedural justice in the criminal justice system.

• Define the term social justice, using examples of historical events and leading figures in social justice, and social justice in the community.

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CHAPTER 7Section 7.1 And Justice for All

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Equality, solidarity, and human rights form the building blocks of social justice, the notion that all individuals should have equal access to justice and equal protection of the law.

“Justice . . . is the great interest of man on earth. It is a ligament which holds civilized beings and civilized nations together” (Webster, 1914, pg. 533). As such, the concept of justice

permeates through all aspects of human life. Yet, it remains an elusive concept to define.

The term justice can be defined as a concept of attempting to understand what is just, including equality, in all aspects of human life. However, any individual definition of justice is influenced by cultural and historical contexts and is also based on numerous contexts in which an individual uses the term—contexts that focus on the definer’s beliefs and values. “Some people believe that justice is a reality, something that has been achieved through a set of policies and laws,” while others argue that “perfect justice is illusory and impossible to achieve” (Owen, Fradella, Burke, & Joplin, 2012, p. 155). Still others believe “there is much injustice in the world which may or may not be correctable” (Owen, et al., 2012, p. 156). Although various definitions and individual beliefs about justice exist, “virtually everyone believes that justice, however it may be defined, is something worth achieving” (Owen, et al., 2012, p. 156).

Social justice is a broad concept that covers every aspect of justice from a societal stand- point. This includes defining justice on individual, as well as social, levels. Social justice is also deeply ingrained in numerous social policies, procedures, and institutions that work with and/or for individuals and their communities. In the criminal justice system, for example, social justice ideals can be found in various aspects of the system, most notably in the procedures that guide the workings of the system, from the initial interaction of law enforcement officers with citizens to the assistance of reintegration into society for offenders released from prison. For criminal justice students, it is important to understand the various nuances the concept of justice brings to the criminal justice system. As future practitioners in the field, it is important to study the concept of justice from individual, procedural, and social perspectives.

7.1 And Justice for All

Throughout history, societies have developed ideals of jus-

tice that serve as social bench- marks for citizens to determine whether their actions are just, meaning they are correct or good. Actions perceived as unjust are thought to be bad or immoral, going against what the society has deemed just or appropriate. In this light, individuals naturally have a quest for justice. This quest helps individuals evaluate their actions against society’s concept of justice, fulfilling an individ- ual need to feel certainty about whether the behavior is right or wrong (Owen, et al., 2012).

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CHAPTER 7Section 7.2 Individual Justice

The building blocks of social justice are equality, solidary, and human rights. Each of these concepts is defined on an individual level, while viewing that individual within a social context. In other words, individuals are a part of and influence society, while society is a part of and influences individuals.

The American Revolution, and thus the founding of the United States of America, was based in part on the perceived lack of justice provided to the colonies by Great Britain. The term “justice” was used in both the Declaration of Independence and the U.S. Constitu- tion. For the Founding Fathers, with justice came equality, defined as “protections that promote equal rights for all persons without discrimination regardless of characteristics such as race, gender, religion, disability status, veteran status, sexual orientation, income, and more” (Owen, et al., 2012 , p. 192). The Preamble to the Declaration of Independence reads, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” (Declaration of Independence, 1776).

While it is important for a society to create equality among its members, these members must also see themselves as members of that society, thus creating solidarity. For social justice, solidarity means the degree to which individuals see themselves as members of an extended family. As such, those individuals will actively strive to create relationships that are productive and creative, in which individuals who are vulnerable or marginalized are provided equality and counted as valuable members of society (Sirico, 2012).

Human rights are the third building block of social justice. They are important because without fundamental human rights being acknowledged, social justice cannot be expected or achieved. For a society to provide social justice, a respect of basic human rights must be provided to all members of that society, which include freedoms of speech and move- ment as well as various other concrete liberties (Miller, 1999). In other words, social justice requires that societies provide for human rights through basic liberties (Miller, 1999).

A just world is the belief that “individuals get what they deserve” (Hafer & Begue, 2005, pg. 128). This belief helps shape psychological and sociological perspectives of justice, helping individuals by providing order in life and helping societies by promoting discus- sion of and making decisions on important complex issues facing those societies. As such, an understanding of justice is essential to the appropriate application of law and how it “informs the workings of the criminal justice system, from a police officer’s discretion to a judge’s sentencing determinations” (Owen, et al., 2012 , p. 157).

7.2 Individual Justice

Individual justice focuses on outcomes of actions as they relate to individuals, that is, “whether or not the results are correct” (Owen, et al., 2012, p. 158). Several perspectives

have been promoted, which focus on the individual and how the criminal justice system provides justice to both the victim and offender as individuals, and to the community at large as a perceived individual.

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CHAPTER 7Section 7.2 Individual Justice

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Another aspect of restorative justice, called Victim Impact Panels, involves the offender meeting with the victim or victim’s family to listen to the ways in which the crime has affected their lives.

Restorative Justice The goals of restorative justice include making the victim and community whole again, with the ideal of restoring the victim and community to precrime conditions. Both the victim and offender are viewed as individuals, with individual harms arising from the crime, while the community is also deemed to have suffered. For example, in the crime of rape, the victim suffers physical abuse but will also suffer emotional and psychologi- cal harm, as well as possible financial harm due to medical expenses and lost wages. If the rape occurred in a prominent location of the community, like a popular park, then the community is harmed, as individuals may be fearful and avoid the area in which the rape occurred. The offender may also experience harm, as a conviction will lead to a separation from the community and family, as well as being labeled a criminal and sex offender.

Restorative justice allows all parties of the crime to come together, with the ultimate goal of restoration. This is achieved using several techniques. The simplest is for the offender to apologize. While the providing of a sincere apology may be enough for the victim and state to forego additional sanctions, this is generally more true for simple or minor offenses. A second technique involves mediation, whereby the victim and offender come together to meet with a mediator (an individual trained in resolution or conflict management). After talking with both individuals, and taking into account their needs, the mediator would make a recommendation for a solution that both parties will accept (Owen, et al., 2012).

A third technique is the concept of sentencing circle, which is “a community-directed pro- cess, conducted in partnership with the criminal justice system, to develop consensus on an appropriate sentencing plan that addresses the concerns of all interested parties” (National Institute of Justice [NIJ], 2007, p. 1). This involves the victim and family, the offender and family, and interested community members, whereby each provides the group with his or her perspective of the crime and how he or she has been personally impacted by the crime.

The victim, victim’s family, and community members are able to openly discuss the crime to give the offender insight into the harm that was created as a result of the crime and allow the offender to take responsibility for the crime and resulting harm. The group will then devise a sentencing plan that is acceptable to all parties. The goals of sentencing circles include promoting healing for all parties, providing an opportunity for the offender to make amends, empowering all parties by giv- ing them a voice and a shared responsibility in finding construc- tive resolutions, addressing the underlying causes of criminal behavior, building a sense of com- munity, and promoting and shar- ing community values (NIJ, 2007).

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CHAPTER 7Section 7.2 Individual Justice

A fourth technique involves the offender attending meetings where the victim and/or victim’s family has the chance to openly tell the offender how the crime has impacted his or her life. These are typically called Victim Impact Panels. For example, many courts require an offender convicted of drunk driving to attend a Mothers Against Drunk Driv- ing (MADD) meeting to listen to victims of drunk driving crashes. “Attendees get to hear the poignant stories of those whose lives have been permanently affected by an impaired or reckless driver or those affected by underage drinking” (MADD, 2012, p. 1). These exchanges are often powerful and sobering, where closure for the victim and/or victim’s family is achieved.

Restorative justice may also include compensatory provisions, “making efforts to repair the physical or financial damage caused by a crime” (Owen, et al., 2012, p. 159). For example, many states have created victim assistance funds, whereby the state and/or local govern- ments provide monetary assistance to victims of crime. Offenders may be required to pay into the fund or may be required to pay the victim directly for damages, including medical bills, lost wages, or other losses deemed appropriate by the court (Owen, et al., 2012).

Ideological Justice Many individuals believe in a specific ideology, which, for the purpose of defining justice, is a “collection of beliefs that are assumed to produce justice as a result” (Owen, et al., 2012, p. 160). Individuals believe that justice can only be achieved if societal policies reflect their particular ideology. In other words, “the ideology to which one subscribes defines one’s perception of justice” (Owen, et al., 2012, p. 160). The polar opposites in ideology in American society are libertarianism and socialism.

Libertarians believe strongly in individual rights, and that justice can be achieved with little government interference, especially with regard to private property (Sargent, 1996). For example, a libertarian would accept only the minimal amount of taxes, while restrict- ing the state’s ability to criminalize many behaviors, including drug use. “Therefore, any intervention of the law into private property or private rights is viewed as unjust” (Owen, et al., 2012, p. 160).

At the other extreme is socialism, whereby the government uses high taxes and other means to control the distribution of wealth, as well as services and industries, which is commonly referred to as democratic socialism (Sargent, 1996). For the socialist, “justice is best accomplished in a society with a large government that manages public ownership of industries that are viewed as most necessary for a productive society, and that provides many services to all members of society” (Owen, et al., 2012, p. 160). In other words, “an active government is required to promote justice” (Owen, et al., 2012, p. 160). Socialism views the role of the government as paramount, thus severely limiting and, in some cases, eliminating individual rights and responsibilities.

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CHAPTER 7Section 7.2 Individual Justice

Distributive Justice According to Schmidtz (2006, p. 7), “[J]ustice concerns what people are due.” For criminal justice, this means that individuals who commit crime are to be processed through a spe- cific system, from arrest through sentencing, to receive their due punishment. “Because the end result of this process is a distribution of outcomes (i.e., the stops, arrests, verdicts, and sentences), it is known as distributive justice” (Owen, et al., 2012, p. 163). For criminal justice, there are several perspectives on how to dispense distributive justice.

Commutative Justice The concept of commutative justice is based on the philosophies of Aristotle, who wrote that “what is just is what is proportionate. And what is unjust is what violates the proportion” (Aristotle, 2000, p. 87). For example, in criminal justice, in order for a punishment to serve justice, it must be proportionate to the crime. So, an individual who commits a crime should expect that he or she is due some type of punishment and that the pun- ishment will be in accordance to the severity and harm caused by the crime.

Utilitarian Justice The concept of utilitarian justice is found in the writings of Jeremy Bentham, in his idea of the greatest happiness for the greatest number. This is typically calculated using a cost–benefit analy- sis, whereby the cost of a certain behavior is com- pared to the benefit of that behavior. Here, the greatest number represents society, as it is society who constitutes the greatest number, not the indi- vidual. If the benefits outweigh the costs, mean- ing there are more benefits for engaging in the behavior than costs or harms that are con- sequences of that behavior, then the behavior is deemed to provide more happiness, and thus it becomes just (Owen, et al., 2012).

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Aristotle believed in commutative justice, which dictates that punishment should be proportionate to the crime committed.

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CHAPTER 7Section 7.2 Individual Justice

Vigilante Justice Vigilante justice, or what is often referred in criminal justice as “retributive justice,” occurs when individual citizens bypass the criminal justice system and decide to dispense pun- ishment, and thus justice, themselves. “Individuals generally engage in vigilante justice (also known as vigilantism) when members of the community agree that it is necessary to do so to protect persons or property” (Owen, et al., 2012, p. 164). Although the reasons may be honorable, and the vigilante actions taken deemed appropriate, these behaviors run counter to the criminal justice system, in which the state has the sole discretion to prosecute and punish offenders. In that sense, individuals engaging in vigilante justice, regardless of the reason, may open themselves up to criminal liability for their actions (Owen, et al., 2012).

Vigilante justice is grounded in the notion of retribution. Another aspect of retribution is just desserts, or “payback but with less emphasis on individual revenge” (Owen, et al., 2012, p. 266). In other words, society views the offender as harming not only the individ- ual victim, but also harming society as a whole. Societal acceptance of the punishment is then based on the notion that it should fit the crime; or rather, the punishment should be proportional to the harm done without resorting to revenge (Owen, et al., 2012).

Veil of Ignorance The veil of ignorance, as espoused by John Rawls (1999), is an idea that if all individuals were to wear a veil, which would keep them from know- ing and identifying with their personal back- grounds (i.e., gender, race, education, wealth, etc.), then all decisions on social and government policies would be just and fair because they would not be based on self-interest. The veil of ignorance would provide two principles that guide society: All persons should have equal access to basic rights (such as the right to counsel), and society should provide equality of opportunity (such as access to education). “Rawls argued that justice is fairness” and that “fairness is achieved when society provides the same set of rights and liber- ties to all persons and when society allows per- sons an equal opportunity to succeed” (Owen, et al., 2012, p. 168).

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A truly just society would result if individuals were to don a veil of ignorance, enabling individuals to dissociate from their own personal backgrounds and make decisions for the common good.

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CHAPTER 7Section 7.3 Procedural Justice

7.3 Procedural Justice

As each facet of the criminal justice system has individualized procedures that work within the larger procedures of the system as a whole, it is important for criminal jus-

tice students to understand the relationship of those procedures to the concept of justice. Procedural justice “concerns the fairness of the processes used when applying the law” and “is grounded in the idea that fair procedures are the best guarantee for fair outcomes” (Owen, et al., 2012, p. 206).

In the criminal justice system, procedural justice is grounded in the due process guaran- tees found in the Fifth and Fourteenth Amendments. The words due process “have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures” (Legal Information Institute, 2012d, p. 1).

According to Rawls (1971), there are three basic philosophical models of procedural jus- tice. These models can be viewed in the context of the criminal justice system to explain how it attempts to achieve justice.

Perfect Procedural Justice Within the perfect procedural justice model, Rawls (1971) identifies two characteristic features: “First, there is an independent criterion for what is a fair division,” and “second, it is possible to devise a procedure that is sure to give the desired outcome.” In other words, “there is an independent standard for deciding which outcome is just and a proce- dure guaranteed to lead to it” (Rawls, 1971, p. 85).

In the criminal justice system, per- fect procedural justice has its roots in the accuracy model. “Accuracy is provided by elaborate trial pro- cedures, including cross exami- nation, neutral judges and juries, rules of evidence, and representa- tion by counsel” (Solum, 2004, p. 245). However, the current crimi- nal justice system does not fol- low the accuracy model. “Rawls pointed out that legal doctrines often interfere with the accuracy in fact finding required of perfect procedural justice” (Owen, et al., 2012, p. 207).

For example, the Fifth Amend- ment provides individuals a pro- tection against self-incrimination. To further this protection, the U.S. Supreme Court, in Miranda

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The U.S. Supreme Court ruled that in any custodial interrogation, the suspect must first be read the Miranda Rights, which explain an individual’s Fifth Amendment protection against self-incrimination.

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CHAPTER 7Section 7.3 Procedural Justice

v. Arizona (1966) set forth an additional requirement that all individuals in a custodial interrogation situation be informed of this protection. If an individual suspect is inter- rogated while in custody without first being informed of his Fifth Amendment protection against self-incrimination, then all evidence obtained during the interrogation will not be admissible in court, even if the interrogation yielded a confession. “A higher principle of public policy—namely, protection of constitutional rights” is addressed; “however, it interferes with the overall accuracy of the trial process” (Owen, et al., 2012, p. 207). For Rawls, “[P]erfect procedural justice is rare, if not impossible, in cases of much practical interest” (1971, p. 85). In other words, although there is an independent standard identify- ing a just outcome, the procedures do not guarantee that outcome.

Imperfect Procedural Justice Within the imperfect procedural justice model, the first characteristic of the perfect model is seen, but the second characteristic is missing. In other words, the independent criterion has been established, but there is no procedure that guarantees the desired, or just, outcome. For Rawls (1971, p. 85), “[I]mperfect procedural justice is exemplified by a criminal trial.”

The purpose of the criminal trial is to prove that an offender actu- ally committed the crime and that the offender should be convicted, or declared guilty, only if the evidence proves guilt. “The trial procedure is framed to search for and to establish the truth in this regard. But it seems impossible to design the legal rules so that they always lead to the correct result” (Rawls, 1971, p. 85).

For example, even if all of the evidence points to an individual as the offender of a crime, a jury could still declare a not-guilty verdict, or a truly innocent per- son may be wrongfully convicted. “Even though the law is carefully followed, and the proceedings fairly and properly conducted, it

may reach the wrong conclusion” (Rawls, 1971, p. 85). Owen, et al. (2012) argue that this is possible because imperfect procedural justice operates within a balancing model.

The purpose of the balancing model is “to strike a fair balance between the costs and benefits of adjudication” (Solum, 2004, p. 193). So, for the criminal trial, procedural rights granted in the U.S. Constitution, and the law of evidence created to protect those rights, are balanced against the ideal of controlling crime. In other words, there are tradeoffs within the judicial process.

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Criminal trials operate under the imperfect procedural justice model because, though trial proceedings aim to discern the truth, a jury could still come to an erroneous conclusion and declare the wrong verdict.

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CHAPTER 7Section 7.4 Social Justice

Pure Procedural Justice Rawls (1971, p. 86) identified pure procedural justice as occurring when “there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed.” In other words, the criminal justice sys- tem is created with fair procedures that should produce, but does not guarantee, a fair or just outcome. “The process is then more significant than the accuracy of the outcome . . . playing by a set of predetermined, mutually agreed-upon, fair rules is what is important” (Owen, et al., 2012, p. 208).

In order to obtain pure procedural justice, it must be based upon a participation model, meaning that “those affected by a decision have the option to participate in the process by which the decision is made” (Solum, 2004, p. 259). For the criminal trial, the parties involved “are guaranteed a series of rights designed to allow their meaningful participa- tion in the justice process” (Owen, et al., 2012, p. 208). However, not all participation is equal; thus, the system, and the procedures involved, cannot be just. For example, wealth- ier defendants are able to hire more experienced lawyers and expert witnesses, thus pro- viding a possible advantage. Also, even with the ideal of justice being blind, the system is processed by humans, who possess biases, prejudices, values, and norms that will play major roles in decisions, and therefore in outcomes.

Procedural Justice in the Criminal Justice System In our current criminal justice system, all three of the procedural justice models come into play. Therefore, it is important to understand how concepts and ideas from each of the models affect the system and the individuals processed in the system in an attempt to provide just and fair procedures.

Perfect procedural justice tells us that accuracy matters. However, imperfect procedural justice tells us that accuracy is not the only important goal, but that principles such as dignity and respect for people and rights must also be considered. And pure procedural justice tells us that meaningful participation in processes that provide fair rules is also required. Taken together, these models provide the criminal justice system with a frame- work within which the system can be deemed fair and just (Owen, et al., 2012).

7.4 Social Justice

Social justice is not a legal process, but “rather, it is an idea or a value to which indi- viduals may subscribe and which, in turn, can shape decisions about civil justice and

criminal justice policy issues” (Owen, et al., 2012, p. 188). Therefore, the quest for justice is a quest for equality.

David Miller (1999, p. 1) defines social justice as “how the good and bad things in life should be distributed among members of a human society.” When an individual or group in a society claims that a policy, procedure, or process is socially unjust, the claim is that the policy, procedure, or process unfairly gives another individual or group more advantages

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CHAPTER 7Section 7.4 Social Justice

than they ought to enjoy, or provides more burdens for others than they ought to bear (Miller, 1999). In other words, social justice concerns “equality, empowerment, fairness in the relationship between people and the government, equal opportunity, and equal access to resources and goods” (Braveman and Suarez-Balcazar, 2009).

Rawls (1999, p. 8) further elaborates on the concept of social justice, in that

men born into different positions have different expectations of life deter- mined, in part, by the political system as well as by economic and social circumstances. In this way the institutions of society favor certain starting places over others. These are especially deep inequalities. Not only are they pervasive, but they affect men’s initial changes in life; yet they can- not possibly be justified by an appeal to the notions of merit and desert. It is these inequalities, presumably inevitable in the basic structure of any society, to which the principles of social justice apply.

In essence, “people should not be answerable for things for which they are not responsi- ble” (Burrus, 2012, p. 231).

Historical Examples of Social Justice There are numerous examples of social justice movements in the history of the United States, with many of these movements occur- ring in the 20th century. One such movement was the Civil Rights Movement of the 1960s. The movement was succinctly tied to social justice by seeking equal- ity between the races, solidarity among African Americans, and human rights for all Americans. Although a tumultuous time in our history, the end result was the Civil Rights Act

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