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When Should Distributive Justice Be Used in Criminal Justice

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Traditionally, high walls have existed to separate different areas of the field of justice. Theorists who constructed the wall between criminal justice and distributive justice were never able to complete it and deliberately created many gates. It identifies several different views of what characterizes distributive justice, as opposed to other types of justice and non-justice-based moral demands. The criminal justice system comprises institutions, policies, and practices with the goal of maintaining social control and deterring crime through sanctions and rehabilitation. This paper asserts that there is in fact a distributive logic to the changes in current criminal law. The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim. Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare. For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of the power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another. Exposing criminal law as distributionist undermines these individuals’ claimed pre-political commitment against government distribution.

“As a simple matter of distributive justice, a decent and compassionate society should recognize the plight of its victims and design its criminal system to alleviate their pain, not increase it.”, – Anthony Kennedy.


Justice means the fulfillment of the legitimate expectation of the individual under laws and to assure him the benefit promised therein. Justice tries to reconcile individual rights with social good. The concept of justice is related to dealings amongst human beings. It emphasizes on the concept of equality. It requires that no discrimination should be made among the various members of society. To define justice it is very essential to refer to the root idea of the word “Jus’ meaning joining or fitting. Thus, justice carries the meaning of cementing and joining up human beings together. The values of liberty equality and fraternity are important in any system of law and justice These values exist in different proportions and there are conflicts between them too. The concept of justice is not static. With the changes in society, the concept of justice has also changed from time to time. Justice is an evolutionary concept.

The idea of justice simpliciter, with which it is often used interchangeably, the idea of distributive justice has been taken to refer to different things: theorists of justice have adopted different views, mostly without any explicit acknowledgment or defense of them, about what characterizes and delimits the demands of justice as opposed to other moral demands, for example, the demands of legitimacy, community, efficiency, or stability, to mention a few central ones. They have also adopted different views of what characterizes distributive justice as opposed to other types of justice.

Distributive justice, also known as economic justice, is about fairness in what people receive, from goods to attention. Its roots are in social order and it is at the roots of socialism, where equality is a fundamental principle. As far as distributive justice is concerned, some have assumed that what distinguishes it from other types of justice is that it is justice in the distribution of material or economic advantages only, or that it only concerns the allocation, as opposed to the production, of given goods; others have instead equated the idea of distributive justice with that of social justice, and used it to refer to all the principles regulating the balancing of individuals claims to all of the possible benefits of social cooperation.

Theorists of justice widely endorse shared, abstract concepts of justice and of distributive justice: they agree that justice consists in giving each person his or her due, or treating like cases alike; and that distributive justice is justice in the distribution of benefits and burdens to individuals, or consists in the balancing of the competing claims persons make on the benefits that are up for distribution.

Laws that define crime represent a small portion of the legal field and create a large web of entanglements. Society needs a way to deal with individuals who violate these laws and those who are victims of crime, hence the development of the criminal justice system. The phrase criminal justice system is used to describe the three main components of criminal justice: law enforcement, the courts and corrections. Law enforcement is charged with investigating crimes and apprehending individuals alleged to have committed crimes. Courts are responsible for interpreting and applying the law in these cases. The correctional component protects society from criminals through housing, monitoring, and other community-based programs. In some instances, corrections involve incarceration in jails or prisons, while in other cases it consists of supervision in the community, parole, or probation. In the most extreme cases, it means putting an offender to death. Another important aspect of the criminal justice system – one that has received improved and much-deserved attention in recent years- is the victim. Increased emphasis on incorporating victims into the system and paying attention to their needs and wishes is more apparent in law enforcement, courts, and corrections today.

The problem of distributive justice in justice as fairness is always this: how are the institutions of the basic structure to be regulated as one unified scheme of institutions so that a fair, efficient, and productive system of social cooperation can be maintained over time, from one generation to the next? Contrast this with the very different problem of how a given bundle of commodities is to be distributed, or allocated, among various individuals whose particular needs desires, and preferences are known to us, and who have not cooperated in any way to produce those commodities. This second problem is that of allocative justice.

To illustrate: accepting the assumptions implied by interpersonal cardinal comparisons of well-being, we might, for example, allocate the bundle of commodities so as to achieve the greatest satisfaction summed over these individuals from the present into the future. As a political conception of justice, the classical principle of utility can be seen as adapting the idea of allocative justice so as to be a single principle for the basic structure over time.

The idea of allocative justice was rejected as it was incompatible with the fundamental idea by which justice as fairness is organized: the idea of society as a fair system of social cooperation over time. Citizens are seen as cooperating to produce the social resources on which their claims are made. In a well-ordered society, in which both equal basic liberties and fair equality of opportunity are secured, the distribution of income and wealth illustrates what we may call pure background procedural justice. The basic structure is arranged so that everyone follows the publicly recognized rules of cooperation, and honors the claims the rules specify, the particular distributions of goods that result are acceptable as just whatever these distributions turn out to be.

Distribution in the criminal context has not been theorized as it has in the tort context. Nevertheless, it appears evident that retribution and utility bear the same hostile relationship to criminal distribution as fault and efficiency bear to tort distribution. Penal distribution dictates that the criminal receives the amount of punishment that restores the victim to an appropriate state. To put it in tort-like terms, when a defendant is not punished, the victim must “bear the entire burden” of the crime, whereas imposing punishment relieves the victim from shouldering the entire suffering burden. The punishment dictated by the victim’s need for closure may be less or more than what constitutes appropriate deterrence or desert. Recently, a somewhat related school of retributivism, which holds that the culpable “deserve” to compensate victims, has emerged. The idea that law serves a compensatory function has been a staple of tort theorizing for generations. Corrective justice occupies a philosophical middle ground between retributivism and distributionism because it requires fault as the trigger for liability and distribution as its corollary. Although the ability of an injurer to compensate does not create liability, an injurer who is at fault and thus liable must compensate. Some describe correction retributively as constituting what the culpable actor deserves. However, it is not clear why restoring the victim is what one at fault must do. Indeed, the retributive rationalization runs into even more problems when the compensatory amount relates to unforeseeable harms.

Many assert that compensation is required to vindicate the value of victims. If valuing victims is key, however, it seems that fault is not necessary. A person injured by faultless conduct is of no lesser value than one injured through negligence. Corrective justice proponents respond with the tautological argument that only wrongdoing creates the need for victim vindication. But then there is the issue of why only culpable action is normatively related to correction. In the end, it may be that corrective justice reflects both a distributionist mistrust of a society that forces victims to bear the costs of accidental injuries and the reality of an individualized tort regime that prioritizes fault. Yet the repackaging of fault and distribution as correction produces distortive effects that both retributivists and distributionists condemn.

Corrective accounts of criminal law have recently made their way into the penal literature as victims become more important players in the criminal system. Theorist George Fletcher, for example, opines that retributive justice demands “seeking equality between offender and victim by subjecting the offender to punishment.” The attempt to fit victim-based justifications of punishment into a retributive framework has been met with skepticism from retributivists, who conclude that Fletcher’s program “doesn’t look retributive; it looks compensatory to the victims.” Moreover, even if some consideration of victim welfare is compatible with retributivism, retributivism surely cannot tolerate punishment to satisfy victims in the absence of intent-based culpability. Thus, Fletcher does not approve of distributing pain to undeserving defendants (or distributing more pain than deserved) as a means of producing closure. He, like others, writes off any such program as “reducing punishment to simple vengeance.”

Consequently, justifying criminal laws by reference to distributive ends is quite a separate endeavor from supporting laws that retributively punish or achieve maximum deterrence. Although distributive justice, retributivism, and utilitarianism may be used to rationalize the same legal rule and often overlap in significant ways, they are separate justificatory programs with their own sets of supporters and detractors.


For better or worse, we have been living with distribution in the criminal law for centuries. The distributive basis for criminal law existed in small pockets of the law even when prevailing penal philosophy stressed that criminal law was all about defendants— their culpability, reformation potential, and dangerousness. Where harm was particularly great, as in the case of a felon who kills, distributive concerns poked through the otherwise retributive fabric of criminal law. In the current era, the rise of penal distributionism coincided with the retrenchment of distribution in politics and private law. Policymakers who condemned big government and welfare and extolled the virtues of individual responsibility sponsored legislation creating a massive governance structure concerned with creating a distributive balance between individuals involved in a criminal transaction. Despite the prominence of rights and self-reliance rhetoric, popular ideology welcomes the use of state penal authority to satisfy crime victims’ interests. Thus, conservatives claimed pre-political commitment against government distribution simply breaks down to a sophisticated tool to be used or discarded in favor of dominant or politically relevant interests.

Understanding criminal law as a matter of distribution also opens up several interesting avenues of future analysis. For example, revealing the distributive basis of criminal law sets the stage for assessing whether current victim-based laws actually meet their purported distributive goals. Although touting victim-centered reforms serves prosecutors’ and policymakers’ interests, it is another question altogether whether such reforms actually improve victims’ lives. Many scholars argue that victims heal by forgiving defendants and understanding the conceptuality of the crime, not by engaging in acts of pure vengeance. Additional questions involve whether judges and juries are well suited to assess victim closure, whether fair distribution requires doing what crime victims purportedly want, and whether closure is something that must be distributed in a just society.

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