Is unequal justice still justice?
David Fryman cites a similar argument being made by Ernest van den Haag in the case of the death penalty. A common anti-death-penalty argument is to point out that it's applied unequally -- specifically, people of color are far more likely to be sentenced to death than whites -- and therefore even if it's justified in theory, we're better off not applying it at all if we can't do it equally. Van den Haag replies that unequal justice is still justice for those who are properly executed and thus the status quo is better than a ban (assuming you agree that death is deserved for certain criminals). Framing the problem this way brackets out a lot of elements of the inequality in sentencing, such as the likelihood that many of the people sentenced to death don't in fact deserve it, and whether unequal death penalty application contributes to larger structural inequalities. But within its domain, it seems at least plausible.
Fryman counterposes van den Haag's argument to one from Ronald Dworkin. Dworkin is concerned that a democracy can't maintain its integrity if it makes compromises on matters of principle. We can't apply one side's definition of justice to some cases and the other side's definition to others (especially -- though the portions of Dworkin's argument Fryman quotes don't make this explicit -- if the division between the two sets of cases is arbitrary). This is because the state that instituted such a policy would have to rely on contradictory principles when justifying each half of the policy. Thus, Fryman writes:
Imagine a state that, in an effort to compromise between death-penalty supporters and opponents, passes legislation providing that all and only convicted murderers born in months with 30 days shall be put to death. Would we say in this case that "unequal justice is still justice"?
But I don't think this framing of the unequal death penalty situation as a compromise matches the actual case, and thus Dworkin's counterargument is inoperative. The unequal death penalty is not a result of some sort of compromise where anti-death-penalty people get their way with white murderers while pro-death-penalty people get their way with murderers of color. It's the product of a practical constraint (rooted in the operations of social prejudice and unequal access to legal resources) on a policy meant to execute everyone. No one individual or entity is saying that justice is done when people are not executed and that it is when people are executed. Rather, each side is praising the cases that have the "correct" outcome, and deploring those that go the other way.