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Is unequal justice still justice?

"Unequal justice" refers to situations in which justice requires that we do a certain thing, but it is only possible to do it in some of the cases. The question, then, is whether it's better to do justice some of the time and thereby treat cases unequally, or to do it none of the time and achieve equality at the expense of justice for any of the cases. I've touched on a similar theme with respect to imperfect tests and speciesist animal rights policies, and generally come down on the side that unequal justice is better than equal injustice.

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.


Blogger Joel Monka said...

"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..."

Actually, this claim doesn't bear close examination if you compare apples to apples- I discussed this just recently in another comment

3:29 PM  
Blogger Christina said...

I'm quite late, but Joel, I see several problems with your argument:

1)The Supreme Court ruled that the US has the authority to execute Mexican nationals in Medillin v. Texas (2008)even if they are denied the right to contact their consulate. He was executed in Texas.

2) The vast, vast majority of immigrants are not turned over to immigration for deportation/removal proceedings until the completion of their sentence. Even if their deportation case is heard while they are in prison, they still serve the entire sentences. There are some limited exceptions to this rule- Arizona has an agreement with Mexico where Mexican citizens can get reduced sentences by agreeing to deportation. However, this agreement specifically excludes people convicted of violent crimes, i.e. murder.

3) Your argument assumes that all non citizens convicted of crimes are actually here without authorization, when many of them have lawful status as permanent residents and so forth. The permanent residents would probably lose their status as a result of the conviction, but they were here lawfullly at the time of the crime.

4) Your argument also assumes that the US government is successfully screening and indentifying immigrants without status before their sentences are served. This is absolutely not the case. Not all prisons and jails work with immigration to perform these reviews, not all have access to techonology, and these reviews are often fraught with error. For instance I met a man born in the United States who was shipped off to immigration detention after committing a drug offense.

5) I think your argument assumes that "illegal aliens" are committing capital crimes at a rate higher than the rest of the US population, otherwise there wouldn't be enough to tip the scales. However, studies show that the 12 million or so undocumented commit crimes at the same or lower rates as US citizens.

5:46 AM  
Blogger Joel Monka said...

Christina- I'm not sure where you're coming from in those points. In the discussion I linked to, I never mentioned immigrants, legal or illegal, a single time. In fact, the argument was written at a time when the immigration issue wasn't on the radar screen- both the question asked and my answer dealt only with African Americans. The only mention of Hispanics in the entire thread is where Will Shetterly says, "If you factor for class, a disproportionately high number of both whites and blacks are executed, and a disproportionately low number of Hispanics are:..."

7:00 AM  
Blogger Christina said...

Joel, for some reason when the link opened, the first thing I saw was a question from someone named Jeff about immigrants, and I reflexively replied without realizing your own comments were below. I apologize, and will consider your interesting points more.

7:09 AM  
Blogger Joel Monka said...

No problem! :)

8:52 AM  

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