What is Justice?

Attorneys work in, and people are judged by, the “justice system.” In the court system, we constantly talk about “doing justice.” In an auto accident case, the crash victim is looking for “justice” in the form of compensation for a wrong caused by someone else’s negligence.

In the criminal courts, victims look for “justice” in the form of sending the person who hurt them to prison. The accused looks for “justice” in the form of an acquittal. Justice means different things to different people at different times and in different situations…

But how many people ask themselves, “what is justice?” How many people, even lawyers and judges, spend their time sitting in a quiet place reflecting on what Justice means?

I confess I have not spent enough time considering the question. But I will think about it more often as I seek “Justice” for my clients in the criminal courts. Is Justice even a real thing? Is it solely an abstract concept created to justify getting what we want or need?

Or is it an abstract concept usurped by governments to pacify the people? Here, we will give you Justice in the courts. Therefore, you will not feel that it’s necessary to rise up and take the things you need and want by force?

Types of Justice

Is Justice one many-faceted thing, a perfect ideal? Or is it many things?

The concept of Justice tends to be defined by people who operate in different fields of thought – philosophy, religion, and the law. It means different things depending on the context in which you use it. It means different things to different people in the same context. What are some of the definitions of Justice that we have come up with over the centuries?

Define Justice

The Merriam Webster Dictionary defines Justice as:

…the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments

the administration of law; especially:the establishment or determination of rights according to the rules of law or equity

the quality of being just, impartial, or fair (1): the principle or ideal of just dealing or right action (2): conformity to this principle or ideal:RIGHTEOUSNESS

the quality of conforming to law

conformity to truth, fact, or reason:CORRECTNESS

So, Justice means impartially deciding disputes, the administration of law, the quality of being just, righteousness, or correctness. All similar but different things. And, by the way, you can’t define a word by using the same word (Justice = being Just). It’s a terrible definition, but where else can we look?

Philosophical Discussions of Justice

It seems that Justice cannot be defined. At least, not in under 10,000 words. It is something that must be discussed, rather than defined…

Justice is Harmony. Plato argues that Justice is harmony, both within the person and within society (the city-state):

In his dialogue Republic, Plato uses Socrates to argue for justice that covers both the just person and the just City State. Justice is a proper, harmonious relationship between the warring parts of the person or city. Hence, Plato’s definition of justice is that justice is the having and doing of what is one’s own. A just man is a man in just the right place, doing his best and giving the precise equivalent of what he has received. This applies both at the individual level and at the universal level.

When all sides get a fair hearing and an issue is decided in an egalitarian, unbiased way based on principles that apply equally to every person, doesn’t the disharmony – tension – of crime and accusation, or injury and compensation, resolve into harmony?

Justice is Morality. A view of Justice as “doing that which is moral and good” begs the question, “what is moral and good?” Theologians might argue that Justice is derived from God. Indeed, it is the nature of and the command of God:

Advocates of divine command theory argue that justice, and indeed the whole of morality, is the authoritative command of God. Murder is wrong and must be punished, for instance, because God says it so…

Jews, Muslims and Christians traditionally believe that justice is a present, real, right, and, specifically, governing concept along with mercy, and that justice is ultimately derived from and held by God.

For a religious person, any discussion of Justice must necessarily involve a discussion of their religion’s teachings on what is good and what is moral – Justice, like goodness and morality, flows from God.

Justice is Equality. Equality is an essential component of Justice by most definitions, and this especially applies in the courtrooms – “all men are equal before the law.”

Of course, that’s a fleeting ideal. Although most participants in the justice system will repeat this belief that “all men are equal before the law,” is it a reality? Has it ever been? Similarly situated people should be treated similarly, and all should have equal access to Justice.

Except, our country’s Justice system was designed and, in many cases, still operates to give Justice to wealthy white men. We are still engaged in a struggle to achieve Justice in the courts, in the sense of egalitarianism, for black men and women, white women, Hispanic and Latino men and women, LGBT men and women of all races, poor whites, children… well, everyone but wealthy white men.

The ideas of Social Justice and Distributive Justice are also based in egalitarianism or the notion that Justice means equal treatment under the law.

Justice is Fairness. This is the simple answer for many people. Butwhat is fairness? Fairness means equal treatment. Even children intuitively understand the concept of fairness as equal treatment – picture the look on your five-year-old’s face as you hand a piece of candy to his sister but not him. Or when his sisters go on a trip with mom and he is left behind.

Justice is the absence of bias. We all bring pre-conceived notions about the parties or subject matter to every conversation and decision that we make. Perhaps Justice is when a decision maker’s ever-present biases are set aside (which is an impossible task).

Justice is Mutual Agreement. Perhaps Justice is what we all, as a society, mutually agree that it is? In which case we are screwed, because, beyond paying lip service to fairness and equality, there is no agreement in our society as to what is Just.

Justice is the will of the strong. Justice is what the strongest among us say it is.

In Republic by Plato, the character Thrasymachus argues that justice is the interest of the strong – merely a name for what the powerful or cunning ruler has imposed on the people.

Is Justice a way of pacifying the masses?

On the one hand, the strong (the government, judges, and Supreme Court Justices) say that Justice is equality under the law. But, if the law is not applied equally to all people, what is Justice really? A means to oppress the people? A release valve that makes people that they are getting “Justice,” so they don’t seek Justice in the streets?

Justice is whatever people want or need. If I murder your brother in a street fight, you may think that nothing short of my death is Justice. Maybe it goes back to the religious definition of Justice – “an eye for an eye.”

On the other hand, I may think that Justice happens when I regret what I did, I repent, I am forgiven, and I am set free to live my life. Again, based on a religious definition of Justice.

Your brother is dead, and you are angry – are you equating Justice with revenge? Or is revenge a part of Justice? I am locked in a cage with no hope for redemption – can there be Justice without Freedom?

Justice is to make someone whole again. In a personal injury lawsuit, Justice means money. It’s the only thing that you can get in the civil courts, and so it will have to do. The law says that, if you hurt someone through negligence or a criminal act, you must “make them whole again.”

Is that Justice, or is it just getting a person what they want or need – you’ve been hurt, you need someone to compensate you for the damage that they caused, and therefore Justice = money?

What is Justice in the Criminal Courts?

In the context of criminal cases, the ideal of Justice requires even more discussion – if an alleged victim is sure that an accused person wronged them, Justice for the alleged victim may be 1) a guilty verdict, followed by 2) punishment. Is that necessarily Justice for the accused, their family, or society?

How can jurors decide whether a guilty or not guilty verdict is Justice? If Justice is a guilty verdict, the inquiry does not end there. To consider what type of sentence is “Just,” first we must understand what the possible range of punishments are and what purpose the sentence would serve.

What are the Possible Punishments After a Criminal Conviction?

After a person is convicted of a crime, there is a wide range of punishments available, although a court’s options may be limited by statutory mandatory minimum or maximum sentences. The options include:

• Death (in states that allow capital punishment);
• Imprisonment – which could range from a day in jail to life in prison without the possibility of parole;
• Probation – a prison sentence suspended upon the service of probation with conditions that are designed to ensure the person is working, getting an education, staying drug-free, and not committing crimes;
• Restitution – can accompany any sentence where a victim was injured, and the accused has the means to compensate them;
• Pretrial diversion programs that allow a defendant’s record to be expunged after they complete community service or drug treatment;
• A fine paid to the court;
• “Time served” – allowing the defendant to go home with no further consequences apart from a criminal record; or
• Creative sentencing – some courts will allow a person to attend a treatment facility as a condition of their probation, courts will sometimes craft requirements intended to shame a defendant (wearing a sign around their neck that says “thief”), to teach a defendant (writing a letter of apology), or to encourage service to their community (community service hours).

Courts tend to decide a person’s sentence based on factors like the severity of the offense, whether the defendant has a criminal history, the defendant’s life story (are they a good and moral person?), whether there was a victim in the case and what they want, how much money a defendant has (when a defendant can pay restitution to a victim in their case, they are likely to serve less time in prison), and the arguments of prosecutor and defense counsel.

These are things that attorneys and judges talk about all the time. Somewhere in the sentencing factors considered by judges everywhere is the concept of Justice. Although the definition of Justice may be different depending on the judge and the facts of each case, I think that most judges are trying to achieve Justice, whatever that means to them.

Justice in Sentencing

What is Justice in sentencing? The definition of Justice in sentencing is probably found somewhere in the purposes of sentencing.

Freedom is as important a concept as Justice, and the two are intertwined – can there be Justice without Freedom? Maybe there can, but for Justice to include a denial of Freedom, there must be a compelling reason. Justice denied to a person whose life is cut short by a prison sentence must be outweighed by the need to incarcerate a person in giving Justice to a victim or the community.

Retribution

Retribution, or revenge, may be the primary need of a victim who has been injured, or whose loved one has been killed by a defendant.

Revenge is ugly, and most disinterested people may think that revenge does not equal Justice. But a victim might disagree. If Justice is nothing more than what a person wants or needs at any particular moment, retribution = Justice for the victim of a crime.

Retribution is also the unstated motivation for many sentences. Judges punish criminal defendants. In many cases, a judge does not feel that they are there to help a defendant, rehabilitate a defendant, or make a victim whole again. They are there to punish the defendant, to cause them pain in retribution for the pain that the defendant caused someone else.

But how many times have crime victims stood in court and demanded the harshest punishment, only to regret their words years later? For the family of a murdered relative, the death penalty may feel like the only thing that will bring them peace. But, when a death sentence does not bring them peace, they cannot take back their words spoken at the sentencing hearing…

If retribution is the product of emotion – anger, or even rage, and that emotion dissipates over time, can retribution ever = Justice? If Justice today is life in prison, but in ten years that life sentence is not Justice because it tortures me and keeps me awake at night, is that Justice? Or did we just call it Justice to “justify” our need for revenge?

Deterrence

Deterrence is another accepted purpose of punishment. Deterrence to the individual – if I send you to prison for ten years, you are less likely to commit further crimes once you are released (theoretically).

Also, deterrence for the community – when Bob the burglar sees that you went to prison for breaking into a house, maybe he will think twice before breaking into another house because that could be him getting sent to prison.

Deterrence as a purpose of sentencing has merit, but it’s not as black-and-white as some people think. It’s a complex concept.

Consider, for example, murder. Most people who have killed another person did not carefully plan the murder as they considered the potential consequences. It happened in the heat of the moment – the statutory definition of murder and potential sentences are the furthest thing from their mind when the conflict breaks out.

Rehabilitation

Rehabilitation may come the closest to achieving Justice for everyone involved, but it is often the least considered. Rehabilitation can return a person to society. Rehabilitation can prevent the person from committing future crimes by considering the reasons a person committed the crime in the first place.

Although rehabilitation as a goal of sentencing may not feel like Justice to an angry crime victim, it achieves Justice for the defendant, for the defendant’s family and dependents, and for society. Once a victim’s need for retribution passes or lessens, rehabilitation may also feel like Justice to the victims in a case.

Incapacitation

In some cases, society must be protected from persons who are incapable of conforming to the law or who will continue to hurt others. Putting someone in prison for life or for a long period of time accomplishes that goal – if they are in a cage, they are separated from the rest of us and cannot hurt anyone outside of the prison.

But is that Justice? In many cases, people who must be separated from society to protect others are that way because of mental illness or drug addiction. Maybe it’s treatable and maybe it’s not, but is it Justice to incarcerate them and make them suffer for a condition that is beyond their control?

If the goal is incapacitation, is hurt and infliction of suffering necessary to achieve that goal? Or does incapacitation become an excuse for retribution and cruelty?

Restitution

When a victim has been injured and money can “make them whole again,” the court can order restitution. In some cases, courts must order restitution. But if the goal of sentencing is restitution, and a defendant is indigent, how does sending them to prison achieve the goal?

Why do so many defendants face the choice of paying money or going to prison? What if you kept them out of prison, taught them job skills, and let them work to pay the restitution? I don’t mean put them on probation and tell them pay or your probation will be revoked. I mean teach them job skills, get them drug treatment if needed, get them mental health treatment when needed, and help them to make restitution to the victims.

In this way, restitution is made possible by rehabilitation. The reality, however, is that courts feel they must choose between restitution and retribution.

The Scales of Justice

Does Justice mean Justice for one person? Does a jury have to decide between Justice for a defendant or Justice for an alleged victim? Or is the ideal of Justice a merging of each person’s Justice? Is it Justice for All, but just one at a time as you appear in court? Or is it Justice for All, every person’s Justice considered together?

The Scales of Justice take on a deeper meaning when you consider that Justice means something different for every person involved – lawyer, judge, defendant, and victim.

Just as a conscientious judge must weigh the interests of Justice for everyone involved, jurors must weigh the competing interests of the parties in a criminal trial. But should they weigh each person’s Justice and then choose who gets Justice and who is denied Justice? Or should they weigh each person’s Justice and find a solution that achieves Justice for all involved?

Justice is a much more complex notion than, “did he do it?” What if he did it, but it was “justified” regardless of the statutory elements of the crime?

What if he did it, but the resulting punishment would work a manifest injustice under the circumstances? We aren’t allowed to tell jurors what the potential punishments would be for a conviction. We also are not allowed to tell jurors that they do not have to convict a person even if their actions fit the elements of a crime.

Are we asking jurors to find Justice when they decide guilt in a criminal case? Or are we asking jurors to find Justice for the alleged victims only?

What do you think Justice is?

SC Criminal Defense Lawyer in Charleston, SC

Grant B. Smaldone is a SC criminal defense lawyer based in Charleston, SC. If you have been charged with a crime in the Charleston, SC area, call Charleston criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or send an email to set up a free initial consultation today.