*What is justice?

*Can we be truly just?

*Is justice to be afforded to all members of

society as a right or a privilege?

*Do we desire to place all members of society

under the umbrella of justice?

*What is the cost of justice?

* Absolute justice is a phantom entity, a pseudo
reality.

* It has fascinated politicians, philosophers,

scholars and patriots, but it does not nor

even can exist in the absolute.

•What would be needed to realize a state of
absolute justice?
1. The absolute ability to identify all law
violators.
2. The absolute ability to apprehend all law
violators.
3. The absolute ability to punish all law
violators.
4. The absolute ability to identify the intent
of all law violators.
1. Murder of a police officer – 2:3 (67%)
2. Murder in general – 1:2 (50%)
3. Aggravated Assault – 1:10 (10%)
4. Robbery – 1:15 (7%)
5. Burglary – 1:35 (3%)
6. Felony Larceny 1:110 (.9%)
7. White Collar Fraud – 1:2 million
8. Computer Fraud – 1:120 million

Need a 1:1 ratio, but closer to 1:250,000

Absolute justice demands that all violators
be punished or no violators be punished. It
is inequitable to the law abridgers who are
punished to allow another law abridger to
roam free and unpunished.
It is inequitable to the law abiders of society
if known law abridgers are allowed to roam
free and unpunished.
1. Innocent are punished.
2. Guilty escape punishment.
3. Guilty are punished more severely than
they should be.
4. Guilty are punished less severely than they
should be.
There is a general socio-economic clustering of
the four classic justice delivery errors, with the
general convergence of error as follows:
A. Poor:
1. Innocent being punished; and
2. Being punished more severely than they
should be.

B. Wealthy:
1. Escaping punishment when guilty; and
2. Being punished less severely than they
should be.
Justice is the interest of the stronger
Socrates

* Justice is a concept used by the powerful to stay in

power. It is a label used to cloak the unethical
activities of the stronger in legitimacy
* Money and power are the defining elements in our
justice system
* Golden Rule – Whoever has the gold makes the rules
* Efficacy – contacts, networks, charisma, money,
reputation; not just money alone
Justice should be, the equitable access and
applicability of rights, privileges and opportunities.
Socrates
 Keep the rich, rich, and keep the poor, poor;
maintain the status quo
 Achieve some measure of equity, fairness and
justice in micro and macro
 Maintain social peace, order, and stability

Different goals yes, but no necessarily mutually

exclusive. In a one year snap shot, there will
be examples of each in any given courtroom.
All governments that have flourished since
the beginning of time have been nothing
more than a conspiracy of the rich to
perpetuate themselves under the guise of
Statecraft.
Thomas More
(circa 1530)
Wrong question. The question is where is
justice – where the people demand it and
stand up for it

Nebraska state motto – the liberty of the

people is preserved only due to their
watchfulness

Gravity analogy – natural state of affairs is

injustice, inequity, inequality
The most important political office is that
of private citizen. In discharging that
office, we citizens must never be mere
spectators who stand on the sidelines with
hands in our pockets and no convictions in
our souls.

Linda Brown
Martin Luther King
Who are the criminals?
 Those who have been caught
 Those who have a low socio-economic,
political, legal efficacy coefficient.

Who is not a criminal?

 Those who have not been caught.
 Those who possess a high socio-economic,
political, legal efficacy coefficient.
1. Substantive dimension (legislative
component, executive orders, court
precedents, regulatory agency rules)

2. Procedural dimension (police, prosecutorial

and judicial decisions, policies and
practice; local legal culture)
Unfounding – Systematically ignoring crimes
known to exist (Atlanta vs. St. Louis,
Chicago).

Founding – Systematically reporting crimes

that otherwise would have not been
reported (Portland).

De-founding – systematically adjusting the

severity of offenses that are known to exist
(Washington, D.C.).

Local Legal Culture…again

 Deviance – acts
 Deviants – people

Emile Durkheim (1858-1917)

1. Deviance is a two-edged sword of
equivalent positive and negative values,
with corresponding sanctions/rewards.
2. “Deviant” tends to be an all-
encompassing label, but no one is
deviant in all aspects of their lives.
3. The definition of “deviant” is
contextual. It is the quintessential
relativity. We are deviant when we are
in a group that is different from us.
Deviance and deviants depends upon
who you ask and in what setting or
context you are in. We are all “the
deviants” in someone else’s eyes.
4. While there is some consensus at the
extremes, there is little consensus beyond
those edges. Definitions of deviance
depend upon values, culture, perspectives,
and experience. Definitions of deviance
are a relative, normative, contextual
phenomena.
 Multiple perceptions of deviance are held by different
people with different backgrounds and experiences, and
these perceptions are subject to continual change over
time. These varying and fluid perceptions co-exist and
compete for prominence in society, and if you have the
power, you can elevate your perception to a position of
prominence and have it serve as the society’s socio-
legal definition of deviance, and it will stay that way
until you are out of power and then someone else’s
definition will emerge supreme. The definition of
deviance is the ultimate, the quintessential, relativity.

 What is deviance and who are the deviants depends

upon who you ask, and when you ask it and in what
context. We are all the deviants in someone else’s
eyes.
5. Were all deviants (and their deviance) to be
eliminated, new definitions of deviance would emerge
and punishment would be meted out accordingly.
What was marginal deviance before would now be in
the unacceptable category. Deviance cannot be
eliminated. The extent of deviance is constant (the
constancy dictum). What changes is the definition of
the nature of deviance. As societies evolve, as the
interests of the powerful change, the definitions of
deviance change, but the extent does not.
6. Crime is bound by social class. The poor
are more criminal than the rich because the
laws are both written and enforced for the
benefit of the rich and powerful.
Deviance is also bound by social class, not
in terms of extent, but in terms of nature. In
other words, the prevalence or extent of
deviance is similar from one social class to
another, but the types of offenses committed,
the nature of deviance, differs from one social
class to another (ie., the rich steal in ways
available to them and the poor do likewise).
The rich are less criminal than the poor
because they have the power (the efficacy) to
define crime so as to legitimize their illicit
behaviors, and have the law enforced to their
Liking. They are no less deviant in terms of
the extent of their involvement in illicit
behaviors. The nature of their involvement is
different (the rich can steal in ways the rest of
us can’t and steal far, far more), but the
extent of their involvement is the same.
7. There is a value to deviance. Remember, it is a two-edged
sword with both negative and positive components (yin and
yang). Without deviance, we would be a society of clones
with “hemophiliacic” minds, incapable of dealing with the
variation around us. Deviance and diversity are mandatory
to confront and survive in the tumultuous world in which we
live. Draw the Durkheim curve without deviance! On the
positive side, deviance:
a. Serves as a catalyst for change and progress.
b. Provides the raw materials for social change.
c. Forces a re-examination and modification of
values and behaviors in the context of new
environments.
d. Redistributes opportunities for leadership.
e. It forces the opposition to better
prepare its case and thus in this
adversarial context, refines the truth.
f. Responses to deviance inculcate into
members of society, just what society
expects.
g. Draws people together in mutual
condemnation, thus promoting
community cohesion.
h. Removes bureaucratic red-tape and thus
provides quicker responses.
We would not want to live in a society without
deviance, BUT, how much, how extensive and what
types? There is no definitive “answer.” It is the
quintessential, eternally un-resolvable query. It
depends on who you ask and when you ask and who is
in power and who is out of power, and even then, the
answer will be different tomorrow than it was today.
1. Yes, if legislative bodies pass laws to legalize
everything (substantively)
2. Yes, if the police ignore all crimes/fail to
perform their duties (procedurally).

So yes, crime in a substantive and procedural

sense can be eliminated, and in that context
remember that crime is just a label given to
certain activities and that label can be and
historically has been altered as the interests of
the powerful change, but, that is not the point.
We cannot eliminate crime in the generic sense (or more
accurately – deviance) anymore than a physician can
eliminate death. Crime and death are omnipresent. Our
job, is to reduce the severity of the nature of crime and
deviance, and it can be done

Gun/knife example - extent constant, seriousness reduced

Medical analogy – reduce severity of illness and injury;

Done differently for different patients

Financial planner analogy – increase value of portfolio and

done differently for different clients
We are crime managers, not crime/deviance eliminators.
It is our job as criminologists to find ways to reduce the
severity of the nature of crime/deviance in both
preventative and curative contexts. What can we do to
prevent crime to begin with and how should we respond
to correct the problem and reduce the severity of the
problem in the future, knowing that we will need to use
different means and methods in the many different
communities in our nation, in our world.

Scientific criminology and public criminology (Joseph

Goldberger, Ignaz Semmelweis)
$300 B – Crime suppression expenditures
$3.5 T – Crime perpetration costs
$3.8 T – Total (18% of the GDP)

The Great Crime Policy Question –

Where can we best spend the $300 B to most

effectively reduce the $3.5 T crime perpetration
costs?
Crime Control Model Due Process Model
Aggravates long-term stability Aggravates short term contingencies
Apprehend the guilty Protect the innocent
Assumes deviance and explains conformity Assumes conformity and explains deviance
Authoritarian, trained police Social service, educated police
Burden of proof on defense to demonstrate Burden of proof on prosecutor to demonstrate
innocence at beyond reasonable doubt guilt at reasonable doubt
Closed bureaucratic justice structures Open, linking-pin justice structures
Corporal punishment Non-interventionist treatment
Criminal intent of little concern Criminal intent of an overriding concern
Discretionary power to police and prosecutorial Discretionary power to judicial and correctional
officials officials
Emphasis on efficiency Emphasis on effectiveness
Emphasis on training Emphasis on education
Few confession extraction guidelines Completely voluntary confessions
Few search and seizure rules Strict search and seizure rules
Frequent use of the death penalty Abolition of the death penalty
Harm, frighten, scare, intimidate Encourage, help, aid, assist
Harms innocent persons Allows known guilty to go free
Harsh sentences Lenient sentences
High certainty of apprehension/justice system Low certainty of apprehension/justice system
processing processing
Large, demeaning prisons Community-based corrections
Crime Control Model Due Process Model
Large private sector police force Small private sector police force
Legal counsel provided on rare occasions Legal counsel provided as a right at all stages
Maintain the status quo Respond to social inequities
Mandatory, determinate sentencing Indeterminate sentencing
Many law enforcement officers Few law enforcement officers
Many penalties Few penalties
Maximize level of offender intrusion into system Minimize level of offender intrusion into system
National, centrally organized police force Local, autonomous, decentralized police force
No pretrial discovery for defense Unlimited pretrial discovery for defense
Plea bargaining emphasis Complete adjudication
Presumption of guilt Presumption of innocence
Preventive deterrence policy Curative rehabilitation policy
Protect society from evolutionary change Protect society from revolutionary change
Protect society in the short run Protect society in the long run
Punish the guilty Protect the innocent
Punishment fits the crime Punishment fits the criminal
Quick, informal justice Formalized, individualized justice
Rational, economic man theory Crime a psycho-sociological entity
Social order Individual liberty
Supervision of offenders Advocate of offenders
Swift, certain punishment Treatment, but only when needed
The Crime Control model accentuates two of the four
errors of justice administration:
* Innocent are punished
* Guilty punished more severely than they should be

The Due Process model accentuates two of the four

errors of justice administration:
* Guilty escape punishment
* Guilty are punished less severely than they should be

The Crime Control model and the Due Process model are
polar opposites, quintessential examples of yin and yang.
Any level of law enforcement activity above zero will
result in an infringement upon some number of the
innocent.

The intrusion curve’s principle, as also noted by Kant,

is that it is pragmatically impossible to achieve a
state of absolute justice. There will always be error
in any kind of justice delivery/justice administration
effort.
 
Premise #1 - When liberty is permitted to
grow without limits, it is at the expense of
justice and order.

Premise #2 - The greatest threat to our

republic comes from those, who in attempt
to preserve order, would destroy liberty.
Justice will be realized only when the
body politic are internally willing
to obey the unenforceable.
 Slow down the cycle (maintain the status
quo/keep the rich, rich, and keep the poor,
poor)
 Achieve some measure of equity, fairness and
justice in micro and macro (and avoid
miscarriages of justice)
 Maintain social peace, order, and stability
 Reduce the severity of the nature of crime and
deviance through preventative and curative
measures (manage/mitigate, not eliminate)
 Modify those preventative and curative
measures to effectively meet the unique needs
inherent in different communities and
different times (local legal culture)
 Medical analogy, again (local legal culture,
crime mitigation)
 We must internally contend with the inescapable
moral dilemmas inherent in justice system work.
 See the movie, “Dirty Harry.” Are morally dirty
means ever justified to obtain morally good ends?
 If so, what is an acceptable calculus? How far on
the morally dirty scale are we permitted go to
achieve a morally good end of what level? Is a -4
action acceptable to realize a +6; how about a -3
for a +2?
 Is there a universally accepted definition or
ranking system for morally dirty means and/or a
morally good end? Is a -4 activity viewed as a -4
by all people? Is a +7 result viewed as a +7 by all
people?
 Keep the rich, rich, and keep the poor, poor;
maintain the status quo
 Achieve some measure of equity, fairness and
justice in micro and macro
 Maintain social peace, order, and stability

All done with a preventative and curative

orientation.

What differentiates justice systems is the exact

nature of the justice process and the extent of
the individual protections granted in that process.
What types of protections, freedoms and rights
should be given to what groups of people? How
extensive should they be? When does the exercise
of these protections and freedoms begin to flaunt
the law? When does governmental control become
excessive intervention? How much liberty is to be
afforded to members of society and how much
order should the state seek to maintain?

Read, Liberty v. Order

• The justice system can only reinforce social forces moving in the same
direction.
• The foundations of society are its churches, schools and families. A
justice system is only a temporary measure, a band aid designed to buy
time, to fill in the holes in the social fabric that appear as those
foundational entities of society shift and change, as they always have
and always will (see the works of Will and Ariel Durant).
• Little Dutch Boy analogy. Thank goodness he has his finger in the dyke
to prevent a flood, but, it is just a temporary fix.
• The justice system has all of its fingers and toes in the dyke, but it is
just temporary and more leaks are appearing, so we must manage
crime (where to most effectively put our fingers and toes/our
resources)
• Justice reforms as just different ways to hold our fingers in the dyke.
• It is a tribute to those in the system, the dedicated, persistent
performing professionals, that the system works as well as it does.
It is not the critic who counts; not the
man who points out how the strong
man stumbles, or where the doer of
deeds could have done them better.
The credit belongs to the man who is
actually in the arena, whose face is
marred by dust and sweat and blood;
who strives valiantly…
The real test of life is to be able to hold two
opposing ideas in mind at the same time,
and still retain the ability to function. One
must recognize that things are hopeless, but
be determined to make them otherwise.

It is on this premise that we must continue.

* The Nebraska state motto notes that our freedom,
the liberty of we the people, is preserved only by
our watchfulness. Justice is not a naturally
occurring phenomena. If we want justice where we
live, we must do something about it. We cannot
stand idly by. If we wish to see an increase in the
communal justice coefficient, we must remove our
hands from our pockets and become engaged in the
struggle.
* John Donne – do not ask for whom the bell tolls
* Solon – true justice will come only when those
who are not hurt are just as indignant as those
who are.