CHAPTER 3

Determining Moral Behavior

Lecture slides prepared by Lisa J. Taylor

Harold Hall’s

Wrongful Conviction

• Harold Hall was wrongfully convicted in 1990 of a double homicide and rape.

• He was sentenced to life in prison without parole.

• In 2004, he was released after post-conviction DNA tests confirmed his innocence.

• For 19 years, Hall spent his time reading everything he could, including magazines, newspapers and law books pertaining to advances in DNA identification technology and its uses in cases similar to his.

• But the work paid off. In 2004, in addition to earning his GED, Hall got his sentence reversed and won his freedom.

Justice

• Fairness • Related to equal treatment

• Equality• Refers to equal shares or treatment

• Impartiality• Refers to the concept of equal treatment

Defining JusticeThe concept of justice originates in the Greek word dike, which refers to everything staying in its proper place.

Plato believed justice was achieved by maintaining the social status quo. He classed it as one of the four civic virtues (along with wisdom, temperance, and courage).

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

Aristotle’s Thoughts on JusticeRectificatory (Commutative) Justice • Called for in business where unfair advantage or

undeserved harm has occurred. • Demands remedies or compensations to the injured

party.

Distributive Justice• Concerns what measurement should be used to allocate

society's resources. • Proportional equality: unequal people (e.g., slaves,

women) get unequal shares.

Major Components of Justice Recognized Today

Distributive Justice

• Division of goods and burdens among members of a society.

Corrective Justice

• Determination and methods of punishment.

• Punishment should fit crime (concept of just deserts).

Distributive Justice

Justice involves rightful possession of:

• Economic goods (income or property)• Opportunities for development (education or

citizenship)• Recognition (honor or status)

Since some possessions are scarce, justice requires that goods be distributed using standards of entitlement such as need and desert.

Possible Standards for Distributive Justice

• Need

• Merit

• Performance

• Ability

• Rank

• Station

• Worth

• Work

• Agreements

• Requirements of common good

• Valuation of services

• Legal entitlements

Theories of Distribution (I)• Egalitarian Theories: Based on the premise of equality or equal

shares for all.

• Marxist Theories: Places need above rights.

• Libertarian Theories: Merit, entitlement, and productivity have more weight than needs or equal shares.

• Utilitarian Theories: Attempt to maximize benefits for society by balancing entitlement and needs.

• Rawls Theory: Any inequalities in a society should benefit the least advantaged.

*** All have an equal right to basic shared liberties

Rawl’s Theory of Justice

• All inequalities in a society should benefit the least advantaged.

• Social and economic inequalities should be arranged to be to everyone's advantage.

• Decisions about distribution should be made without regard to one’s status (the veil of ignorance) because justice and fairness are in everyone's rational self-interest.

Obamacare - Example of What Type of

Justice?

Patient Protection and Affordable Care Act (PPACA)

• Signed into law by President Obama on March 23, 2010.

• Represents the most significant regulatory overhaul of the U.S. healthcare system since 1965.

• Aimed primarily at decreasing the number of uninsured Americans and reducing the overall costs of health care. It provides a number of incentives to employers and uninsured individuals in order to increase insurance coverage.

• Requires insurance companies to cover all applicants and offer the same rates regardless of pre-existing conditions or gender.

• After mixed success in lower courts, on June 28, 2012, the Supreme Court upheld the constitutionality of much of the Act.

Criticisms of Rawls

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

• Preferring the least well-off is bad for a society; leads to lack of incentive, decline of standards.

• Rawls’s approach to distribution ignores desert and merit.

Occupy Wall Street Movement

- Distributive

Justice?

• Occupy Wall Street claims to be a movement that began on September 17, 2011 in Manhattan’s Financial District.

• It has spread to over 100 cities in the U.S. and actions in over 1,500 cities globally.

• It claims to be fighting back against the power of banks and corporations over the democratic process, and the role of Wall Street in creating an economic collapse.

• This movement was allegedly inspired by uprisings abroad, and aims to fight back against the richest 1% that write the rules of an unfair global economy.

• The occupations around the world are being organized using a non-binding consensus based collective decision making tool known as a "people's assembly.”

Corrective Justice

Substantive Justice

• Based on the concept of just deserts• Involves the determination of a “fair” punishment

Procedural Justice

• Based on the concept of law and rules• Involves steps taken to determine guilt as well as

punishment

Two Philosophies of Justice

Retributive

Utilitarian

Retributive Justice• Based on the concept of balance

• Perpetrator must suffer pain or loss proportional to the victim’s (an eye for an eye; a tooth for a tooth)

• Lez talionis: a vengeance-oriented form of retributive justice concerned with equal retaliation.

• Difficult to agree upon a fair degree of punishment in situations that involve mitigating factors and partial responsibility

• Difficult to measure the suffering or loss in incarceration (most typical modern punishment)

Mercy

• Is separate from justice

• Tempers or “seasons” justice

• Is not an automatic right or matter of desert

• Derives its value from compassion

• Requires a generally retributive outlook on punishment and responsibility

Mercy in the

Criminal Justice System

• In 2012, Stewart Creekmore, 26, was sentenced to17-years by a judge who accepted a plea agreement reached by the Commonwealth and defense.

• Police say Creekmore ran a red light and crashed into a truck driven by Henry Bush in July 2010, killing Bush. Creekmore's passenger and girlfriend, Stefanie Oatman, lost the couple's 7-month old fetus as a result of the crash.

• After all the Bush family has gone through, they still showed Creekmore mercy. "I'm finding it in my heart to do things right," said the victim's wife.

• Part of the plea agreement, Creekmore's charges were reduced to manslaughter 2, fetal homicide, assault, and DUI.

• Creekmore is already serving a 5-year sentence for escape from the Montgomery County jail in October 2010.

Utilitarian Justice• Based on concept of “good for all”

• Justice requires punishment be for the greatest good.

• Bentham’s hedonistic calculus.

• Punishment is prescribed on the basis of perceived deterrence.

• Treatment is acceptable because it supports deterrence.

Trayvon Martin Case – Retributive or Utilitarian

Justice?

• The fatal shooting of Trayvon Martin by George Zimmerman took place on the night of 2/26/12 in Florida.

• Martin was an unarmed 17-year-old black male. George Zimmerman, a 28-year-old Hispanic American, was the neighborhood watch captain for a gated community where Martin was staying & where the shooting took place. Zimmerman noticed Martin acting suspiciously inside the community. Zimmerman called the police department to report Martin‘s behavior.

• During a fight, Zimmerman fatally shot Martin. Zimmerman told police that Martin had attacked him and that he had shot him in self-defense.

• Zimmerman was questioned for approximately 5 hours, then released.

• On 4/11/12, the prosecutor filed a charge of murder in the 2nd degree against Zimmerman.

• Outcome of case still pending.

20

Procedural Justice

Justice is the concept of fairness. Law is a system of rules.

• Procedural justice consists of laws and procedures meant to safeguard against error in the application of justice.

• Due process exemplifies procedural justice.

Due Process ClausesArticle V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article XIV, Section 1. All persons born or naturalized to the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Procedural Protections in the U.S.

• Notice of charges

• Neutral hearing body (jury)

• Right of cross-examination

• Right to present evidence

• Representation by counsel

• Statement of findings

• Appeal of verdict

Who Deserves Due Process Protections?

• Only citizens? (not illegal immigrants?)

• Only residents? (not Marielitos?)

• All those held against their will by this government? (enemy combatants)

Habeas Corpus: ancient form of due process

Thinking Point

In April of 2010, Arizona Governor Jan Brewer signed into law SB 1070, The Support Our Law Enforcement and Safe Neighborhoods Act. This law allows law enforcement to require those who may be illegal immigrants to provide documentation of their residency status, or face possible prosecution. Critics of this law claim this is racial profiling at its best.

Does this law infringe on basic due process rights?

What type of justice does this law exemplify?

Police Racial

Profiling Case

Officer Patrick Smith – LAPD

• A 2012 investigation into Patrick Smith, a 15-year veteran who worked on a motorcycle in the LAPD’s West Traffic Division, found that he was stopping Latinos based on their ethnicity.

• Officer Smith is accused of misidentifying some Latinos as being white on his reports — presumably in an effort to conceal their ethnicity.

• LAPD Chief Beck reviewed the evidence against Smith and he and his command staff recommended Smith be found guilty. Beck signed off on the investigation's findings and ordered Smith sent to a disciplinary hearing, where the department will attempt to have him fired.

• In LA, the chief cannot fire an officer alone, but instead must let a 3-person board decide if the firing is warranted. The panel could also exonerate Smith, who was relieved of duty during the investigation.

Civil Disobedience1. It must be nonviolent in form and actuality.2. No other means of remedying the evil should be

available.3. Those who resort to civil disobedience must accept the

legal sanctions and punishments imposed by law.4. A major moral issue must be at stake.5. When “intelligent men of good will” differ on complex

moral issues, discussion is more appropriate than action.6. There must be some reason for the time, place and target

selected.7. One should adhere to “historical time.”

Restorative Justice• Emphasizes compensation over retribution.

• Returns focus to rights and needs of the victim.

• Requires restoration of victims, offenders, and communities injured by crime.

• Integrates victims, offenders, and communities more fully into the justice process.

• Leaves government responsible for order, but makes community responsible for peace.

Community Justice Models

• Victim-offender mediation

• Community reparative boards

• Family group conferencing

• Circle sentencing