A minimum of 1,200 words (total assignment) and three scholarly sources. References does not count toward word count!After the Michael Brown shooting in Ferguson, Missouri in the summer of 2014, there were large protests and marches, some of which led to looting and violence. Some of the protesters came from elsewhere and trained in elements of civil disobedience before protesting.1. Were the actions of the peaceful demonstrators directly causal to the looters and violence that occurred later? How should police respond to civil disobedience (marching in the street or occupying public land after being given a lawful order to disperse)?2. Use news stories to identify examples of distributive justice and corrective justice. Find a wrongful conviction story and identify the procedural justice elements that were problematic.3. Watch a crime drama clip (either television series episode or news story) and try and identify language in the show that illustrates fairness, equality, and impartiality, the three concepts of justice discussed in this chapter. What other elements of justice appeared?4. Present a young child talking about a moral dilemma and try and identify a stage score based on Lawrence Kohlberg’s moral stage theory. What statements are consistent with a stage or level? Do children think differently about moral dilemmas than adults? Explain.5. Present examples of the Ford Pinto scandal, the Jon Burge scandal, and other current ethical scandals where organizational leaders and/or work groups made bad decisions. Explain whether or not the elements of Bandura’s moral neutralization were present (p. 97).
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Occupy Wall Street protesters being arrested in April 2012.
N
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t may seem strange that an ethics book has O
a chapter on justice, but the concept of justice is integrally related to ethics
N
and, obviously, especially relevant in a discussion of ethical
I
issues related to criminal justice professionals. Professionals
in the criminal justice system serve and promote
1 the interests
of law and justice, so before we explore the ethical issues and
9 with a discusdilemmas that confront them, this chapter begins
sion of justice itself.
0
Many of the major philosophers and ethicists frame their
9
discussion of ethics around the concept of justice. We will disT
cuss Aristotle’s views of justice below. More recently,
Michael
Sandel (2009), a popular Harvard professor, hasS
an ethics course,
book, and website titled Justice: What’s the Right Thing to Do?
His approach places ethical questions within the context of justice. This juxtaposition of justice and ethics is consistent with
ethical formalism to the extent that moral duties derive from
Brendan McDermid/Reuters/Landov
Justice and Law
Chapter Objectives
1. Describe the three themes included in the
definition of justice.
2. Define Aristotle’s two forms of justice
described in the chapter.
3. Under corrective justice, distinguish
between substantive and procedural
justice, including how procedural justice
impacts wrongful convictions and
perceptions of racial discrimination.
4. Explain the concept of restorative justice
and the programs associated with it.
5. Describe civil disobedience and when it
may be appropriate.
54
9781337259163, Ethical Dilemmas and Decisions in Criminal Justice, Ninth Edition, Pollock – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 3   Justice and Law   55
rights. For instance, a child has a right to be cared for, which creates a moral duty for
parents. Other potential rights are more controversial; for instance, does one have a
right to healthcare? Does one have a right to be told the truth in all situations? Injustice occurs when rights are denied, thus, discussions of justice and ethics overlap.
According to Lucas (1980: 3), justice “differs from benevolence, generosity, gratitude, friendship, and compassion.” Justice is not something for which we should feel
grateful, but rather, something upon which we have a right to insist. Justice should not
be confused with “good.” Some actions may be considered good but not demanded by
justice. For instance, the recipients of charity, benevolence, and forgiveness do not have
a right to these things; therefore, it is not an injustice to withhold them. Although the
idea of need is important in some discussions of justice, it is not the only component
or even the primary one; that is why ethical formalism (which focuses on duty) is more
consistent with justice than the ethics of care (which focuses on need). It is important
to understand that what is just and what is good are not necessarily the same.
People can be described as displayingM
unique combinations of generosity and
selfishness, altruism and self-interest. Some
I writers insist that the need for justice
arises from the nature of human beings and that we are not naturally generous, openhearted, or fair. On the one hand, if we wereLto behave all the time in accordance with
E On the other hand, if humans were
those virtues, we would have no need for justice.
to always act in selfish, grasping, and unfair
Sways, we would be unable to follow the
rules and principles of justice. Therefore, we uphold and cherish the concept of justice
, people’s essential selfishness and genin our society because it is the mediator between
erosity. In other words, justice is the result of a logical and rational acceptance of the
concept of fairness in human relations.
S
Anthony Walsh (2000) presents the interesting
idea that justice is a biologically
H to argue that the sense of justice is
adaptive trait. He uses evolutionary psychology
emotional rather than rational and is the result
A of natural selection. His argument,
simplified, is that humans, similar to other animal species, have “cheaters” and “suckers.” Cheaters are those who do not engage inN“reciprocal altruism” (basically, cooperation). Suckers are those who are continuallyNtaken advantage of by cheaters. They are
not optimally adapted for survival, and if they perish, cheaters would perish as well
because they need victims to take advantageO
of. Thus, “grudgers” evolve as a response;
they may be fooled once by cheaters, but they
N are outraged and demand punishment
when they are victimized. This adaptation successfully ensures the continued existence
of grudgers as well as cheaters. Our “moral outrage,” in other words, is an evolutionary
1
response, as is our emotional demand for justice.
Any discussion of justice includes at 9
least three continuing themes: fairness,
equality, and impartiality. Fairness is related to equal treatment. Parents ordinarily
0
give each child the same allowance unless differences
between the children, such as
age or duties, warrant different amounts. Children
are sensitive to issues of fairness
9
long before they grasp more abstract ideas ofTjustice. No doubt every parent has heard
the plaintive cry, “It’s not fair—Johnny got more than I did” or “It’s not fair—she always
S sensing is unequal and, therefore, unfair
gets to sit in the front seat!” What children are
treatment. The concept of fairness is inextricably tied to equality and impartiality.
Equality refers to equal shares or equal treatment as well. There is a predisposition to demand equity or equal shares for all, or equal shares for similar people. The
concept of equality is also present in retributive justice in the belief that similar crimes
should be punished equally (“equal justice for all”). In contrast to the concept of equal
fairness the
condition of being
impartial, the
allocation of equal
shares or equal
opportunities.
equality the
same value, rights, or
treatment between all in
a specific group.
9781337259163, Ethical Dilemmas and Decisions in Criminal Justice, Ninth Edition, Pollock – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
56   Part I   Ethics and the Criminal Justice System
In the News
“Too Big to Jail?”
Recent reports indicate that the Justice Department
has charged over 4,000 people with mortgage fraud
alone based on the economic meltdown of 2008 due
to mortgage-backed derivatives; however, hardly any
top executives have been charged, despite the fact
that their companies are paying billion-dollar fines for
criminal behavior. Law professor Brandon L. Garrett,
author of a recent book Too Big to Jail, analyzed 303
non-prosecution and deferred prosecution agreements
with corporations from 2001 to 2014. Individuals were
charged in only 34 percent of the cases that involved
Source: Stewart, 2015.
impartiality not
favoring one party or
interest more than
another.
all types of white-collar and corporate crimes. Only
42 percent of those charged received any jail time.
This is despite the fact that companies paid huge
fines and admitted criminal culpability; for example,
Siemens paid over $1.6 billion for bribery, Pfizer paid
$2.3 billion for bribing doctors, and Tyson Foods paid a
$4 million fine for bribery. Prosecutors explain that they
would like to prosecute executives, but it is harder to
prove cases of individual culpability. Critics argue that
top executives are unlikely to be prosecuted because
of other reasons.
M
I
shares is the idea of needs L
or deserts; in other words, we should get what we need or,
alternatively, what we deserve
E by status, merit, or other reasons.
Impartiality is also related to the concept of equal treatment. At the core of our
S
system of criminal justice is the theme of impartiality. Our symbol of justice represents, with her blindfold,,impartiality toward special groups and, with her scales,
proportionally just punishments. Impartiality implies fair and equal treatment of all
without discrimination and bias. It is hard to reconcile the ideal of “blind justice” with
S into consideration when determining culpability or
taking individual circumstances
punishment. Most would argue,
H individual differences and circumstances should be
taken into consideration—if not during a finding of guilt or innocence, then at least
A
when sentencing occurs. The blindfold may signify no special treatment for the rich or
N also signify no special consideration for the young, for
the powerful, but then it must
the misled, or for extraordinary
N circumstances. The In the News box above illustrates
that those who believe the justice system is not impartial may be right.
O
N
Origins of the Concept of Justice
justice The quality
of being impartial,
fair, and just; from
the Latin justitia,
concerning rules or
law.
Justice originated in the Greek word dike, which is associated with the concept of
1
everything staying in its assigned place or natural role (Feinberg and Gross, 1977: i).
9 with the definitions of justice given by Plato and Aristotle.
This idea is closely associated
According to Plato, justice
0 consists of maintaining the societal status quo. Justice
is one of four civic virtues, the others being wisdom, temperance, and courage
(Feibleman, 1985: 173). In 9
an ordered state, everyone performs his or her role and does
not interfere with others. Each
T person’s role is the one for which the individual is best
fitted by nature; thus, natural law is upheld. Moreover, it is in everyone’s self-interest to
S
have this ordered existence continue because it provides the means to a good life and
appropriate human happiness.
In Aristotle’s conception of justice, the lack of freedom and opportunity for some
people—slaves and women, for instance—did not conflict with justice, as long as the
individual was in the role for which, by nature, he or she was best suited. In other words,
those with the highest intellect should be given schooling, those who were musical
should be the musicians in society, and those with qualities that were suited to servitude
9781337259163, Ethical Dilemmas and Decisions in Criminal Justice, Ninth Edition, Pollock – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 3   Justice and Law   57
should be slaves. Aristotle lived in a time where slavery was an accepted practice and
slaves were considered to be different in aptitude and character from free men, but even
Aristotle recognized that injustice may occur when someone placed into slavery, for
instance, a vanquished enemy, might not be “naturally” suited to slavery. Aristotle associated justice with the law; if a person violated the law, he would be considered unjust.
However, he didn’t view justice solely as a function of law. A person’s dealings with others in all areas of life determined whether he could be considered just or unjust.
Distributive Justice
Aristotle distinguished between two types of justice: distributive justice and corrective
justice. Distributive justice concerns what measurement should be used to allocate
society’s resources, dealing with issues such as affirmative action, welfare, free schooling, and other goods and opportunities and how society distributes them among its
M
members. Corrective justice concerns unfair advantage or undeserved harm between
I
people. Justice demands remedies or compensations
to the injured party.
The concept of the appropriate and justLallocation of society’s goods and interests
is one of the central themes in all discussions of justice. According to one writer, jusE 1980: 117–119). The goods that one
tice always involves rightful possession (Galston,
might possess include:
S
• Economic goods (income or property) ,
• Opportunities for development (education or citizenship)
• Recognition (honor or status)
S
H opportunity, status) for everyone, issues
If there was enough of everything (goods,
of distributive justice would not arise; it is only
A because there is usually a condition of
scarcity that a problem arises with the allocation of goods. Two valid claims to posN
session are need and desert. The principles of justice involve the application of these
N have presented various proposals for
claims to specific entitlements. Different writers
deciding issues of entitlement.
O
Lucas (1980: 164–165) identified distributions based on need, merit, performance,
N requirements of the common good, valability, rank, station, worth, work, agreements,
uation of services, and legal entitlement. Despite differences, all schemes include some
concept of need and merit (also see Raphael, 1980: 90). A major conflict in distributive
1
justice is between need and merit. The difficulty in distributing society’s goods lies in
9
deciding the weight of each of the criteria discussed
above. The various theories can be
categorized as egalitarian, Marxist, libertarian,
or
utilitarian,
depending on the factors
0
that are emphasized (Beauchamp, 1982):
distributive
justice Justice
that concerns what
measurement should
be used to allocate
society’s resources.
corrective
justice Justice
that concerns when
unfair advantage or
unjust enrichment
occurs (either through
contract disputes or
criminal action) and
what the appropriate
remedy might be to
right the wrong.
9
• Egalitarian theories start with the basic premise
T of equality or equal shares for all.
• Marxist theories place need above desert or entitlement.
S
• Libertarian theories promote freedom from interference by government in social
and economic spheres; therefore, merit, entitlement, and productive contributions
are given weight over need or equal shares.
• Utilitarian theories attempt to maximize benefits for individuals and society with a
mixed emphasis on entitlements and needs.
9781337259163, Ethical Dilemmas and Decisions in Criminal Justice, Ninth Edition, Pollock – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
58   Part I   Ethics and the Criminal Justice System
Box 3.1   Annual CEO Salaries – 2013/2014
John Hammergren
McKesson Pharm
$151.2 million
Charif Souki
Cheniere Energy
$141.9 million
Mario J. Gabelli
Gamco Investors, Inc.
$85 million
Satya Nadella
Microsoft Corp
$84.3 million
Jay N. Levine
Springleaf Holdings, Inc.
$78.7 million
Tom L. Ward
Sandridge Energy Inc
$71.1 million
Anthony G. Petrello
Nabors Industries Ltd
$68.2 million
Lawrence J. Ellison
Oracle Corp
$67.2 million
Polo Ralph Lauren
$66.7 million
Vornado Realty
$64.4 million
Kinder/Morgan
$60.9 million
Honeywell
$55.8 million
Express Scripts
$51.5 million
Priceline
$50.2 million
United Health Group
$48.8 million
Ralph Lauren
Michael Fascitelli
Richard Kinder
David Cote
George Paz
Jeffrey Boyd
Stephen Hemsley
M
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L
E
S
,
S
H
Source: Forbes, 2015.
A
N to the wide disparities in salaries found in the United
How do the theories apply
States? For instance, the CEO’s
N salaries, as shown in Box 3.1, are dramatically higher
than average salaries of American workers. Is that fair, or is that just compensation for
O
reaching the pinnacle of one’s career? Ironically, a recent study shows that the comN executives do not perform better, and, in fact, there is
panies with the highest paid
Note: Different sources have different lists of highest paid executives due to differences in computing stock options and
other compensation sources.
an inverse correlation between compensation and company performance. In other
words, the study showed that companies with the highest paid executives perform
correspondingly worse for1their shareholders than the companies with lower average
executive pay (Adams, 2014).
9 Thus, evidence doesn’t seem to support a merit-based
argument for such compensation differences.
0
In 2011, the Occupy Wall Street movement began as disgust over the economic
9 (who own most of the wealth of the country) and the
disparity between the 1 percent
other 99 percent. The movement
tapped into the growing discontent in this country
T
over the increasing disparity between the wealthiest and the rest of the population,
S of 2008. There is a growing recognition that the wide disespecially since the recession
parity between CEO compensation and average worker’s compensation is unsustainable. In 2010, Congress included in the Dodd-Frank law a requirement that companies
disclose the CEO–worker pay ratio each year. Evidently, this requirement is largely
ignored by American businesses, but those who compute such statistics report that the
gap is widening dramatically. According to one study done by the Economic Policy
9781337259163, Ethical Dilemmas and Decisions in Criminal Justice, Ninth Edition, Pollock – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 3   Justice and Law   59
Institute, CEO pay rose from 20 times that of average worker pay in 1965 to almost
296 times average worker pay in 2013. Compensation for executives includes base pay,
bonuses, perquisites, and grant-date value of stock options. Equilar, a compensation
computing company, reported that average CEO salary in 2014 was around $14.3 million, an increase of about 5 percent from 2013. Some executive salary–to–worker salary ratios are much higher than the average; for instance, Robert Iger, head of Walt
Disney, makes 2,238 times more than the average worker; Satya Nadella, Microsoft’s
chief, earns 2,012 times the average employee’s salary. Companies dispute the calculation of executive compensation and salary ratios, arguing that stock options are not
really compensation until they are realized (Morgenson, 2015).
Egalitarian distribution systems would pay people equally, or at least equal people
doing equal work would get paid equally. There is very little debate that men and
women, for instance, should be paid equal salaries if they do the same work. Lilly
Ledbetter had been paid less than her male colleagues for 40 years, but she lost her
equal pay case because the Supreme Court M
agreed with her company that she should
have brought the suit earlier (even though she
I was not aware of the pay discrepancy;
Ledbetter v. Goodyear, 550 U.S. 618, 2007). Congress, in response, passed the Lilly
L this redefined the statute of limitations
Ledbetter Equal Pay Act (Pub.L.222-3. S. 181);
E
as when a person finds out about the disparity.
Even though gender disparate pay in equal
S jobs is clearly wrong, when jobs are not
exactly the same, it is more difficult to determine fairness. Obviously, few would agree
,
that workers in all jobs and all professions should
be paid the same amount of money.
First, not many people would be willing to put up with the long hours and many years
of schooling needed in some professions if there were no incentives. Second, some
S involve greater stress than others. Thus,
types of jobs demand more responsibility and
even egalitarian systems, which would start H
with the premise of equal pay, would support calculating “worth” or effort and pay accordingly.
A
Marxist distribution systems propose that we pay people according to need. This
N get only what they need to survive at
sounds fair in one sense because people would
some predetermined level. In that case, a person
N with two children would earn more
than a person with no children. Libertarian advocates, on the other hand, would have
O
no trouble arguing that vast disparities in economic
remuneration are acceptable and
should be left to the free market. High salaries
N promote competition and competition promotes quality, therefore if a CEO or athlete earns a salary that is ext …
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