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Perhaps the most recognized form of justice in the United States at this time is in the definition of, and response to, criminal activity. Criminal justice specifies what constitutes a crime; how society polices, prosecutes, and punishes people who commit crime; and the mechanisms for implementing these activities. Criminal justice is administered through three systems designed to be coordinated: police, courts, and corrections. Clearly, crimes consist of violation of law, but which violations are crimes and how those crimes are regarded varies by social norm, statute, and geographical location. Once crime is defined, justice responds to crime. But here, too, there is divergence. Should justice look back at the crime alone to determine appropriate punishment, or should justice look forward to the impact of the crime and of the punishment on society as a whole?

Because criminal justice responds to active violation, rather that intrinsic conditions and distributions, it is retributive in its basic function. U.S. society defines these violations as crimes and weighs their relative offense according to fundamental principles, or rights, to which Americans adhere. Because liberty and autonomy are critical to U.S. society, the society regards interpersonal crimes (such as robbery or assault) as more reprehensible, with more severe punishments, than "victimless" crimes with no directly injured party (such as prostitution, drug use, and business fraud). For the same reason, punishment must meet standards of fairness and humanity, at least in principle. At the same time, criminal justice varies by state in law and by locality in practice. Further, some states vary punishment not only based on the nature of the crime itself but also on the criminal record of the person who commits the crime. Criminal justice, then, as practiced in the United States, does not hold that all persons will be treated the same way for the same behavior.

Utilitarian concepts of criminal justice hold that a violation of law is a violation of the principles of society and must be addressed as such. A crime must be punished for the relative harm it caused, and the punishment must promote the public good as much as is possible. Under this system, the individual harm caused to the victim is less the focus of the punishment than the total harm that the crime causes society as a violation of social norms and law. Because utilitarian punishment seeks to redress the wrong to society, it condones punishment that serves both symbolic and practical purposes. The U.S. prison system is intended to incapacitate offenders, thus deterring individuals from re-offending and deterring other people who might otherwise offend but fear that they too would be put in prison. Prisons, according to utilitarian principles, also symbolically remove offenders from society, demonstrating the refusal of society to condone violation of fundamental principles. Finally, utilitarian punishment uses the term corrections because prisons are also intended to rehabilitate offenders so that they do not commit crimes upon release, thus restoring the confidence of society.

In contrast to the utilitarian approach, retributive justice looks only at the crime itself to determine appropriate response. Grounded in a moral system that prioritizes autonomy and freedom, retributive justice is tied to the liberal tradition (Kant, Rawls) that maintains the primacy of rationality over sentiment and the centrality of the individual. This approach focuses on delivering punishment to the guilty that is proportionate to the nature of the offense itself as an appropriate--that is, rational, not symbolic--response to the offense and the offender. In this way retributive justice limits the reach of the justice system (i.e., the state or collectivity) and avoids the responsibility of predicting and promoting social benefit. Under this theory prison systems should provide incapacitation and retribution to the offender, but need not rehabilitate the offender or prevent future crimes. In addition, the state must not prolong punishment in the interest of setting an example for the general public, satisfying an individual or collective desire for revenge, or creating more law-abiding citizens from the criminal population.

The implementation and oversight of the justice system are routinely criticized from both ends of the political spectrum for failing to protect the rights of individuals (victims, suspected offenders, and convicted offenders) and for failing to maintain fundamental structures of justice, such as sufficient policing and fair and appropriate sentencing. Plea bargaining, the routine waiver of the constitutional right to trial, accounts for over 90 percent of case resolution, a fact that, on its own, casts a grave shadow over the integrity of the justice system. Yet protections afforded to individuals, such as the right to an attorney and the right of habeas corpus, indicate the commitment of a punishment-focused society to protect fundamental individual rights of all members of society. While these rights may be thwarted because of lack of resources or dedication, they form the basis of the U.S. criminal justice system.

References:

1) Dworkin, Ronald. 1985. A Matter of Principle. New York: Oxford University Press.

2) Garland, David. 1994. A Punishment Reader. New York: Oxford University Press.

3) Kant, Immanuel. 1996. The Metaphysics of Morals, edited by M. Gregor. New York: Cambridge University Press.

4) Rawls, John. 2005. A Theory of Justice. New ed. Cambridge, MA: Belknap Press.

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