Drug War Lies 2007: Still More Shenanigans from the Office of National Drug Control Policy


Robinson, Matthew B., (2010). Assessing Criminal Justice Practice Using Social Justice Theory. 

Social Justice Research. 23: 77-97.  [Mar. 20, 2010] (ISSN: 0885-7466) Springer -- The 

original publication is available at www.springerlink.com 

   

 

Assessing Criminal Justice Practice Using Social Justice Theory 

Matthew Robinson, PhD 

 

ABSTRACT 

In this paper, I introduce two of the leading theories of social justice put forth by John Rawls and 

David Miller. Then, I assess criminal justice practice, from law-making to corrections, in terms 

of ways in which it is consistent and inconsistent with these theories of social justice. 

Throughout the paper, I also identify ways in which criminal justice practice is inconsistent with 

social justice. I make recommendations for reforming criminal justice to make it more consistent 

with social justice. 

 

 

ARTICLE 

Realizing Socially Just Criminal Justice Agencies 

INTRODUCTION 

 Criminal justice agencies have been facing serious criticisms from scholars in criminal 

justice, criminology and related disciplines.  One main claim is that criminal justice agencies are 

ineffective at meeting their goals, especially achieving justice (Robinson, 2009).  Others say the 

“criminal justice system” may actually be aimed at controlling certain segments of the 

http://www.springerlink.com/


 1 

population – the dangerous classes – in order to serve ideological interests of the powerful 

(Reiman, 2006; Shelden, 2007). 

Whatever the case, few would argue with the point that there are major inconsistencies 

between criminal justice practice and efforts to bring about social justice (Arrigo, 1998).  “Social 

justice” is generally equated with the notion of equality or equal opportunity in society.  

Although equality is undeniably part of social justice, the meaning of social justice is actually 

much broader (Scherlen and Robinson, 2008).  Further, “equal opportunity” and similar phrases 

such as “personal responsibility” have been used to diminish the prospective for realizing social 

justice by justifying enormous inequalities in modern society (Berry, 2005).  The most recent 

theories of, and scholarly statements about, social justice illustrate the complex nature of the 

concept. 

 Two of the most prominent statements about social justice, each of which posits its own 

theory of social justice, are John Rawls’ (2003) Justice as Fairness and David Miller’s (2003) 

Principles of Social Justice.  Both conceptions of social justice are similar, so there is significant 

overlap between the main ideas of the theorists; this is likely due to the fact that they are founded 

on like principles and based on previously posited theories from significant historical political 

philosophers (Brighouse, 2005). 

 In this paper, I thoroughly summarize the social justice theories of John Rawls and David 

Miller.  Then, I utilize the two theories to assess the current state of criminal justice practice as it 

relates to social justice.  One goal of the paper is to show how America’s “criminal justice 

system” is both consistent and inconsistent with these theories of social justice – i.e., how 

criminal justice helps bring about but also interferes with the realization of social justice.  



 2 

Another goal is to make suggestions to make criminal justice practice more consistent with social 

justice as laid out in the theories of Rawls and Miller. 

 My effort is not the first to examine criminal justice practice for the presence of biases 

based on extra-legal factors such as race, social class and so forth; many of the problems with 

criminal justice identified in this paper have been documented elsewhere (e.g., see Omi, 1994; 

Sidanius and Pratto, 2001). The main contribution of this paper is I specifically show how these 

problems in criminal justice threaten the realization of social justice, at least as social justice has 

been characterized by John Rawls and David Miller. 

JOHN RAWLS 

Goal and Assumptions 

John Rawls posits a theory of social justice commonly referred to as “justice as fairness.” 

Rawls (2003: 5-6) set out to sketch a theory of social justice that would answer the questions: 

“once we view a democratic society as a fair system of social cooperation between citizens 

regarded as free and equal, what principles are most appropriate to it?” and “…which principles 

are most appropriate for a democratic society that not only professes but wants to take seriously 

… that citizens are free and equal, and tries to realize that idea in its main institutions?” 

Rawls develops his theory for a democratic system of government, and he assumes that 

society is composed of a fair system of social cooperation between free and equal citizens.  He 

also assumes that society is well-organized and regulated by a public perception of justice.  

Further, he assumes that society is guided by rules and procedures that are publicly recognized 

and agreed to, that the rules specify fair terms of cooperation and are rooted in the notion of 

reciprocity or mutuality so that each person has a chance to promote his or her own advantage or 

good.  Thus, his theory is aimed at determining the “political conception of justice for specifying 



 3 

the fair terms of cooperation between citizens regarded as fair and equal and as both reasonable 

and rational … (Rawls, 2003: 7-8). 

Rawls’ conception of social justice is developed around the idea of a social contract, whereby 

people freely enter into an agreement to follow certain rules for the betterment of everyone, 

without considering the implications of these rules for their own selfish gain.  Rawls posits that 

rational, free people will agree to play by the rules under fair conditions and that this agreement 

is necessary to assure social justice because public support is critical to the acceptance of the 

rules of the game. These rules or principles “specify the basic rights and duties to be assigned by 

the main political and social institutions, and they regulate the division of benefits arising from 

social cooperation and allot the burdens necessary to sustain it” (Rawls, 2003: 7). Thus, social 

justice is about the advantages and disadvantages of society and how they should be distributed. 

This also is asserted by David Miller (2003), whose theory of social justice is reviewed later in 

the paper. 

 Rawls does not suggest that everyone will agree with what justice specifically requires in 

given situations, but rather that his conception of justice as fairness can fit into “conflicting 

doctrines” because of what he calls “overlapping consensus.”  That is, people agree enough 

about the basic principles of justice he offers that even when they disagree about larger moral, 

religious of philosophical issues they can still agree about issues of social justice (Rawls, 2003: 

32-37). 

Finally, Rawls does not posit an unrealistically utopian vision of what is justice but 

instead offers a theory of social justice that is “realistically utopian” (Rawls, 2003: 4).  Rawls 

attempts to answer “[w]hat would a just democratic society be like under reasonably favorable 



 4 

by still possible historical conditions, conditions allowed by the laws and tendencies of the social 

world?” 

What is Social Justice? 

 To Rawls, social justice is about assuring the protection of equal access to liberties, 

rights, and opportunities, as well as taking care of the least advantaged members of society.  

Thus, whether something is consistent with social justice depends on whether it promotes or 

hinders equality of access to civil liberties, human rights, opportunities for healthy and fulfilling 

lives, as well as whether it allocates a fair share of benefits to the least advantaged members of 

society. 

 Rawls’ theory of “justice as fairness” can be summarized with three primary principles.  

They are: 

1) Each person has the same indefensible claim to a fully adequate scheme of equal 

basic liberties, which scheme is compatible with the same scheme of liberties for all
1
;  

2) Social and economic inequalities are to satisfy two conditions: First, they are to be 

attached to offices and positions open to all under conditions of fair equality of 

opportunity
2
; and 

3) Second, they are to be to the greatest benefit of the least-advantaged members of 

society
3
 (Rawls, 2003: 42-43). 

 

By the least advantaged, Rawls is referring to those who lack what he calls “primary 

goods” (Rawls, 2003: 53).  Primary goods, according to Rawls, include “things needed and 

required by persons seen in the light of the political conception of persons, as citizens who are 

                                                 
1
  This can be called the “equal liberties principle.” 

2
  This can be called the “equal opportunity principle.” 

3
  Rawls calls this the “difference principle.” 



 5 

fully cooperating members of society, and not merely as human beings apart from any normative 

conception.  These goods are things citizens need as free and equal persons living a complete 

life; they are not things it is simply rational to want or desire, or to prefer or even to crave” 

(Rawls, 2003: 58).  Such goods include: 

 The basic rights and liberties: freedom of thought and liberty of conscience, and the rest; 

 Freedom of movement and free choice of occupation against a background of diverse 

opportunities, which opportunities allow the pursuit of a variety of ends and give effect to 

decisions to revise and alter them; 

 Powers and prerogatives of office and position of authority and responsibility; 

 Income and wealth, understood as all-purpose means (having an exchange value) generally 

needed to achieve a wide range of ends whatever they may be; and 

 The social bases of self-respect, understood as those aspects of basic institutions normally 

essential if citizens are to have a lively sense of their worth as persons and to be able to 

advance their ends with self-confidence (Rawls, 2003: 58-59). 

It should be noted that Rawls (2003: 13) acknowledges the importance of “human rights” 

as well.  He writes: “A just world order is perhaps best seen as a society of peoples, each people 

maintaining a well-ordered and decent political (domestic) regime, not necessarily democratic 

but fully respecting basic human rights.”  Human rights are expansive and include many rights 

relevant to criminal justice including but not limited to the rights to life; liberty; security; 

equality before the law; fair and public hearings by independent and impartial tribunals; 

presumption of innocence until proven guilty; freedom of peaceful assembly and association; the 

right to participate in government; freedom from slavery, servitude, torture or cruel, inhuman or 



 6 

degrading treatment or punishment; discrimination; arbitrary arrest, detention, or exile; arbitrary 

interference with privacy; among many others.
4
 

To Rawls, liberty is the most important element of social justice because the three 

principles are ordered in terms of importance; this means the first principle (the “equal liberties 

principle”) should be achieved before efforts to achieve the second principle (the “equal 

opportunity principle”) and third principle (the “difference principle”) are attempted. The second 

and third principles should “always to be applied within a setting of background institutions that 

satisfy the requirements of the first principle (including the requirement of securing the fair value 

of the political liberties) …” (Rawls, 2003: 46).  Background institutions refer to basic structures 

of society (e.g., family, school, religion, economy, polity), which, when just, can be referred to 

as “background justice” (Rawls, 2003: 10). Logically, agencies of criminal justice are included in 

these societal institutions. 

The Scope of the Principles 

 Not only can Rawls’ first principle be differentiated from the second in terms of priority 

or importance, each also has its own scope.  That is, each is meant to have its own unique 

applications.  According to Rawls, the first principle applies to the “constitutional essentials” 

whereas the second applies to “the background institutions of social and economic justice in the 

form most appropriate to citizens seen as free and equal” (Rawls, 2003: 47-48). 

Rawls explains that the principles of justice as fairness are adopted and applied in a four-

stage sequence.  The first is the adoption of the principles of justice to regulate a society.  Rawls 

(2003: 15) asserts that these must be adopted behind a “veil of ignorance,” which exists when 

                                                 
4
 For other examples, see the Universal Declaration of Human Rights, Covenant on Civil and Political Rights, 

Covenant on Economic, Social, and Cultural Rights, and other similar documents.  “A Summary of Agreements on 

Human Rights.”  Retrieved from http://www.hrweb.org/legal/undocs.html 

 

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there is a limit on information because “parties are not allowed to know the social positions or 

the particular comprehensive doctrines of the people they represent.  They also do not know 

persons’ race and ethnic group, sex, or various native endowments such as strength and 

intelligence, all within the normal range.”
5
 

The second phase is the constitutional convention, which sets forth the institutions and 

basic processes of governance.  The third stage is the legislative stage, where just laws are 

enacted.  Finally, the fourth stage is the application of the rules by administrators, the 

interpretation of the constitution and laws by the judiciary, and the following of the rules by 

members of society in the conditions required by justice as fairness. 

DAVID MILLER 

Goal and Assumptions 

David Miller posits a pluralistic and circumstantial theory of social justice that is built 

around those principles of justice that people actually hold. Miller (2003) develops his theory for 

a democratic system of government, and he assumes that society is a living organism composed 

of individuals, groups, and so forth who believe in social justice because it specifies the 

institutional arrangements that allow for full contributions by and well-being of members of the 

society.  Further, his theory assumes a bounded society with members; that there are specific 

institutions to which the principles of social justice apply; and that the state is the agency capable 

of changing structures when necessary. The theory can be considered pluralistic or 

circumstantial because different parts of his conception of social justice are more or less relevant 

depending on the circumstances.  That is, social justice depends on the context of given 

situations. 

                                                 
5
  Criminal justice scholars often refer to “blind justice” when discussing how factors such as race, ethnicity, gender, 

social class, and other extra legal factors should not impact outcomes of justice (Robinson, 2009). 



 8 

Millers’ goal was to discover those principles people actually use when judging whether 

parts of society are just or unjust.  Miller created his theory from public opinion polls and studies 

of public opinion with regard to different elements of justice.  He does this in part because, while 

social justice must be “critical” in nature so that changes toward more fairness in society can be 

achieved, it must not be utopian.  That is, it must be supported by citizens and can realistically be 

achieved; this is something with which John Rawls agreed. 

It is important to note that Miller finds that people’s views of justice are actually 

pluralistic in that they are determined by the context of a situation.  This suggests that whether 

something is judged as just or unjust depends not only on the principles of justice that people 

hold but also in part on the nature of the situation. 

What is Social Justice? 

To Miller, social justice deals with the distribution of good (advantages) and bad 

(disadvantages) in society, and more specifically with how these things should be distributed 

within society.  Further, social justice is concerned with the ways that resources are allocated to 

people by social institutions.  Some of the advantages relevant for social justice include money, 

property, jobs, education, medical care, child care, care for the elderly, honors and prizes, 

personal security, housing, transportation, and opportunities for leisure.  Some of the 

disadvantages include military service, dangerous work, and other hardships. Logically, 

punishment for wrongdoing would also be considered a disadvantage. Keep in mind that Miller’s 

theory applies to both public goods as well as private commodities. 

Whether something is just or unjust thus depends on whether advantages and 

disadvantages are distributed appropriately in society.  Miller (2003: 1) explains that when “we 

attack some policy or some state of affairs as socially unjust, we are claiming that a person, or 



 9 

more usually a category of persons, enjoys fewer advantages than that person or group of persons 

ought to enjoy (or bears more of the burdens than they ought to bear), given how other members 

of the society in question are fairing.” 

Miller clearly points out that, when considering policies to allocate advantages and 

disadvantages, we must not judge them based on how they benefit us personally: “Justice is 

about assigning benefits whose values are established by their worth to the relevant population 

taken as a whole, and it must be blind to personal preferences (Miller, 2003: 8, emphasis added).  

Further, Miller (2003: 22) says that “justice fundamentally requires us to treat people as equals; 

or we should understand justice as what people would agree to in advance of knowing their own 

stake in the decision to be reached.”
 6

  Social justice efforts can not merely be rationalizations of 

self-interest; this is another concept agreed to by John Rawls. 

To Miller, social justice is a social virtue that pertains to what you are due or owed, as 

well as what you owe others.  It requires that everyone agrees to treat others as equals in a 

manner that is not egocentric or selfish.  This does not mean that everyone has to agree on all 

procedures to bring about justice, for people generally agree on what justice demands (this is 

called the stability of justice). 

 Miller’s theory focuses on the concepts of need, desert, and equality.  Need is a claim that 

one is lacking in basic necessities and is being harmed or is in danger of being harmed and/or 

that one’s capacity to function is being impeded (Miller, 2003: 207, 210).  Desert is a claim that 

one has earned reward based on performance, that superior performance should attract superior 

recognition (Miller, 2003: 134, 141).  Equality refers to the social ideal that society regards and 

                                                 
6
  This is similar to Rawls’ claim about the “veil of ignorance” and reminds us of the need in criminal justice 

practice for “blind justice.” 



 10 

treats its citizens as equals, and that benefits such as certain rights should be distributed equally 

(Miller, 2003: 232). 

Modes of Human Relationships 

Miller’s (2003: 25) theory asserts that whether need, desert, or equality takes precedence 

depends on which “mode of human relationship” is being considered. This is because “we can 

best understand which demands of justice someone can make of us by looking first at the 

particular nature of relationship.”  A mode of human relationship refers to the different kinds of 

relationships that people have with one another. 

Miller specifies three basic modes of human relationships, including the solidaristic 

community, instrumental associations, and citizenship.  A solidaristic community “exists when 

people share a common identity as members of a relatively stable group with a common ethos” 

(e.g., family relations).  In this mode of human relationship, the principle of distribution 

according to need is most relevant: “Each member is expected to contribute to relieving the 

needs of others in proportion to ability, the extent of liability depending upon how close the ties 

of community are in each case … Needs will be understood in terms of the general ethos of the 

community.  Each community embodies, implicitly or explicitly, a sense of the standards that an 

adequate human life must meet, and it is in terms of this benchmark that the much-contested 

distinction between needs, which are matters of justice, and mere wants is drawn” (Miller, 2003: 

27).  Miller is clear to differentiate needs (meeting what is minimally necessary to avoid harm) 

versus wants or preferences.  Needs are also held to be community-specific rather than 

individual-specific and thus can vary across places. 

Instrumental associations exist when “people relate to one another in a utilitarian 

manner; each has aims and purposes that can best be realized by collaboration with others” (e.g., 



 11 

economic relations).  In this mode of human relationship, the principle of distribution according 

to desert is most relevant: “Each person comes to the association as a free agent with a set of 

skills and talents that he deploys to advance its goals.  Justice is done when he receives back by 

way of reward an equivalent to the contribution he makes.  A person’s deserts, in other words, 

are fixed by the aims and purposes of the association to which she belongs; these provide the 

measuring rod in terms of which relative contributions can be judged” (Miller, 2003: 28).  Desert 

is measured based on actual performance rather than efforts or attributes.  It assumes that 

superior performance (not superior talents) should attract superior reward.  Desert lies at the 

heart of a meritocratic system. 

Finally, citizenship refers to “members of a political society” in “modern liberal 

democracies” who “are related not just through their communities and their instrumental 

associations but also as fellow citizens.  Anyone who is a full member of such a society is 

understood to be the bearer of a set of rights and obligations that together define the status of 

citizen.”  In this mode of human relationship, the principle of distribution according to equality is 

most relevant because everyone in the society is deemed equal in terms of certain rights (Miller, 

2003: 30).  Here, every citizen deserves equal rights. 

Because of the citizenship mode, human rights play a significant role in Miller’s theory 

of social justice.  Miller (2003:13) explains that “a central element in any theory of justice will 

be an account of the basic rights of citizens, which will include rights to various concrete 

liberties, such as freedom of movement and freedom of speech … an extensive sphere of basic 

liberty is built into the requirements of social justice itself.”  As introduced earlier, human rights 

are expansive and include rights in many areas. 



 12 

SUMMARY OF AND OVERLAP IN RAWLS’ AND MILLER’S THEORIES OF SOCIAL 

JUSTICE 

To summarize the theories, each social justice theorist posits three major principles. John 

Rawls’ principles assert: 1) Every person should have the same liberties; 2) Inequalities are 

acceptable if every person has the same opportunity for success; and 3) Inequalities are 

acceptable if they are arranged to the greatest benefit of the least-advantaged members of 

society. David Miller’s principles assert that: 1) Every person’s basic needs should be met and 

not hindered; 2) Every person should enjoy benefits and carry burdens to the degree he or she 

deserves them; and 3) Each person should be treated equally.  

There is obviously significant overlap in the theories of Rawls and Millers. For example, 

Rawls’ equal liberties principle is most similar to Miller’s principle of equality (every citizen 

deserves the same basic civil liberties and no societal practices should interfere with these 

rights). Rawls’ difference principle is most similar to Miller’s principle of need (arrangements in 

society should take care of the basic needs of all people in society and no societal practices 

should interfere with these needs). And Rawls’ equal opportunity principle is most similar to 

Miller’s principle of desert (every citizen should have the same opportunity to compete for 

reward based on performance and societal practices should be set up to assure this outcome). As 

noted earlier, the overlap in the theories is likely due to the fact that both theories are founded on 

like principles and based on previously posited theories from significant historical political 

philosophers. 

Finally, recall that each principle has its own scope. For example, according to Rawls, the 

equal liberties principle applies to the establishment of “constitutional essentials.” Thus, the 

equal liberties principle can be used to assess if citizens enjoy equal liberties according to the 



 13 

law. Rawls’ other principles apply to the main institutions of society, which would include the 

law, policing, courts, and corrections. As such, the equal opportunity and difference principles 

apply to the interpretation and application of the law by important societal institutions, including 

the police, courts, and corrections. 

Similarly, according to Miller, each principle is more or less relevant depending on the 

mode of human relationship being considered. In matters of citizenship, the principle of equality 

is most important. Following this logic, as citizens in the United States, all of us should be 

treated equally in the eyes of the law (and in its application by agencies of criminal justice). 

As for the principle of need, this is most relevant for solidaristic communities such as 

families. However, it is not irrelevant for criminal justice for at least three reasons. First, to the 

degree that all citizens of a society see themselves as members of an extended family – e.g., an 

“American family” – where all members are “in this together,” need becomes even more 

important. Second, to the degree that criminality is driven by efforts to satisfy basic needs (e.g., 

stealing food to eat), need becomes relevant since punishing people for trying to satisfy basic 

needs will logically interfere with the ability of people to satisfy their basic needs (Little and 

Steinberg, 2006). Third, criminal justice processing can interfere with the basic needs of citizens 

as well, especially minorities and the poor (Lurigio and Loose, 2008). 

As for the principle of desert, this is most relevant for instrumental associations such as 

work. However, it is also not irrelevant for criminal justice for at least three reasons. First, many 

criminological theories assert that criminality is driven by a desire to seek monetary gain; these 

crimes are even referred to as “instrumental crimes” (Baumer and Gustafson, 2007). Second, if 

people cannot obtain wealth and their other goals through legal means, some will turn to 

criminality through “innovation” (Merton, 1938). To whatever degree people innovate because 



 14 

of diminished opportunities for legitimate success, criminal justice processing may be less 

deserved because of “mitigating” factors such as poverty and unemployment (Ashworth, 1994). 

Third, it is well accepted among legal scholars that punishment is aimed at satisfying desert; that 

is, giving offenders what they deserve (Ristroph, 2006).  

HOW TO USE THE THEORIES 

For the above reasons, it is entirely appropriate to use the theories of John Rawls and 

David Miller to assess the performance of government institutions, including the law, policing, 

courts, and corrections. We can use Rawls’ theory of “justice as fairness” to determine if any 

institution, process or outcome in society is consistent with social justice.  When an institution, 

process or outcome does not comport with any of Rawls’ principles, we can conclude that it is 

not consistent with social justice.  That is, something is not consistent with Rawls’ conception of 

social justice if it interferes with any person’s indefensible claims to equal basic liberties (the 

“equal liberties principle”); or if inequalities in society are not attached to offices and positions 

open to all under conditions of fair equality of opportunity (the “equal opportunity principle”); or 

if inequalities in society are not arranged to the greatest benefit of the least-advantaged members 

of society (the “difference principle”). 

Similarly, we can use Miller’s pluralistic theory of social justice to determine if any 

institution, process or outcome in society is consistent with social justice.  When an institution, 

process or outcome does not comport with any of Millers’ principles, we can conclude that it is 

not consistent with social justice.  That is, something is not consistent with Miller’s conception 

of social justice if it interferes with one’s necessities or hurts one’s capacity to function, if it 

interferes with claims based on desert, or if it impedes equal opportunity or treatment. 



 15 

These theories can be used to assess any government policy to determine if it is 

consistent or inconsistent with this theory of social justice.  Thus, any criminal justice policy – 

from law-making to policing, judicial processes, correctional punishments, and so forth – can be 

judged as consistent or inconsistent with social justice based on whether it is consistent or 

inconsistent with Rawls’ and Miller’s principles of social justice. This paper is the first to assess 

criminal justice practice using these theories of social justice. 

HOW DOES CRIMINAL JUSTICE HELP REALIZE AND INTERFERE WITH SOCIAL 

JUSTICE? 

Table 1 identifies key policies, laws, and programs within criminal justice that are 

consistent with the theories of social justice put forth by John Rawls and David Miller.  These 

are efforts that help bring about social justice in the real world. Each entry is discussed below. 

 



 16 

LAW POLICE COURTS CORRECTIONS

Bill of Rights L.E. Code of Conduct Due process Care, custody of inmates

due process Rights protector     Adversarial system Inmate classification

equal protection Service provider Indigent defense Education, vocational training

Sentencing guidelines

Defines crimes L.E. Code of Conduct

public order Law enforcement

citizen protection Crime prevention

Peace preserver

Table 1: How Criminal Justice is Consistent with Social Justice

 

Table 2 identifies key policies, laws, and programs within criminal justice that are 

inconsistent with the theories of social justice put forth by John Rawls and David Miller.  These 

are efforts that hinder bring about social justice in the real world. Each entry is also discussed 

below. 

 



 17 

LAW POLICE COURTS CORRECTIONS

Differential access Enforce biased laws Enforce biased laws Enforce biased laws

voting

lobbying Abuse discretion Unequal access to defense Unequal application of

Do not define crimes sanctions/punishments

based on harm Differential arrest, force          Plea bargaining

Criminalize need Racial profiling Determinate, mandatory Limited access to satisfy

sentencing needs

Biased laws

Table 2: How Criminal Justice is Not Consistent with Social Justice

 

A review of these tables leads to the overriding conclusion that the criminal law (e.g., the 

Bill of Rights in the US Constitution) was set up to protect civil liberties and to provide for 

equality, at least ideally. Further, American criminal justice agencies are ideally dedicated to 

outcomes consistent with social justice (e.g., due process and equal protection).  Yet, the reality 

of criminal justice practice puts criminal justice at conflict with social justice in many ways.  

Below I discuss some of the ways that criminal justice practice is consistent and inconsistent 

with social justice as put forth in the theories of John Rawls and David Miller. I start with the 

law and then move on to police, courts, and corrections. 

The Law 



 18 

Starting with the Bill of Rights of the United States Constitution, the law establishes due 

process rights and equal protections for all citizens under the law (Orth, 2003).  Thus, it can be 

seen as consistent with Rawls’ “equal liberties principle” and Miller’s principle of “equality.” 

Recall that Rawls suggested that his first principle (the “equal liberties” principle) applies to the 

“constitutional essentials.” The ideal of American criminal justice as found in the US 

Constitution appears on its face to be consistent with Rawls’ first principle. Also recall that 

Miller’s conception of equality is to be applied in matters of citizenship, suggesting that all 

members of a political society in modern liberal democracies be granted the same rights by law. 

The ideal of American criminal justice as found in the US Constitution thus appears to be 

consistent with Miller’s equality principle. 

However, it should be pointed out that historians, sociologists, and other scholars have 

interpreted the US Constitution differently. That have argued that the Constitution was not 

written behind a veil of ignorance (and was thus not “blind to personal preference,” as Miller 

would say). This raises the possibility that the founders may have acted with their own personal 

interests in mind when they wrote the US Constitution. 

For example, Charles Beard suggests that the construction of the Constitution was biased 

against the poor. For example, of the five economic groups that existed in 1787, when the 

document was drafted in Philadelphia, “the four poorest groups had no representatives at the 

convention: women, slaves, indentured servants, and propertyless white men” (Harrigan, 2000: 

45). Every delegate involved in drafting the Constitution was a white male who owned enough 

property to be allowed to vote. According to Beard, of the 55 delegates, 38 owned government 

bonds, 24 earned their living through banking or some other financial investment, 15 owned 

slaves, and 14 had investments in western lands. Further, of the 55 delegates, “at least 40 percent 



 19 

have been or are slave owners, and a significant proportion of the others profit to some degree as 

merchants, shippers, lawyers, and bankers from the trade in slaves, commerce in slave-produced 

agricultural products, or supplying provisions to slaveholders and slave-traders” (Feagin, 2001: 

9).  

Harrigan (2000: 47) suggests that three different types of provisions were written into the 

Constitution to protect the limited financial interests of wealthy, white male delegates: 

  Those that protected their private property rights; 

  Those that insulated the national government from popular rule; and 

  Those that minimized the influence of the lower-status population in the 

ratification process. 

The protections of private property rights included provisions that benefited businesses 

engaged in trade and economy, bankers and creditors, slave holders, and holders of securities 

under the Articles of Confederation. 

Feagin (2000: 10) explains that: 

At the heart of the Constitution was protection of the property and wealth of the 

affluent bourgeoisie in the new nation, including property of those enslaved … For the 

founders, freedom meant the protection of unequal accumulation of property, 

particularly property that could produce a profit in the emerging capitalistic system.  

Certain political, economic, and racial interests were conjoined. This was not just a 

political gathering with the purpose of creating a new major bourgeois-democratic 

government; it was also a meeting to protect the racial and economic interests of men 

with substantial property and wealth in the colonies. 

  



 20 

 Popular rule was not set up in the Constitution because people did not directly vote for the 

president, the Court, or the Senate. Only House members were originally elected by the 

people, and people could vote only if their congressional districts had at least 30,000 people. 

This benefited the wealthy. Barriers to voting (such as property ownership requirements) were 

constructed to discourage a large percentage of people from voting. Because of this, Harrigan 

concludes: 

The lower-status population did indeed have nothing to say about the drafting of the 

Constitution and (whether by choice or coercion) had little to say about ratifying it. 

Important provisions in the Constitution protected economic interests that were more 

valuable to the upper-status population than to the lower-status population (p. 53). 

 

 Similarly, Joe Feagin (2001), traces the roots of American racism to the U.S. 

Constitution and early Colonial America.  He suggests that many of our country’s founders, 

including Thomas Jefferson, Benjamin Franklin, and James Madison, were greatly influenced 

by assumptions in Europe about the inherent inferiority of African Americans to Caucasians. 

Thus, African Americans would specifically to be counted only as three-fifths of a man 

according to the Article I, Section 2 of the U.S. Constitution. 

 Feagin (2001: 14) asserts that the U.S. Constitutional Convention was something other 

than what we have learned about in school. He suggests the structure of the nation, as laid out 

in the Constitution, “was created to maintain separation and oppression at the time and for the 

foreseeable future. The framers reinforced and legitimated a system of racist oppression that 

they thought would ensure that whites, especially white men of means, would rule for 

centuries to come.” 



 21 

 According to Feagin (2001: 15), the country’s founders owned slaves and benefited 

from the unequal treatment of African Americans with Caucasians. “Men of politics like 

Thomas Jefferson, George Washington, Alexander Hamilton, Patrick Henry, Benjamin 

Franklin, John Hancock, and Sam Houston enslaved black Americans. Ten U.S. presidents 

(Washington, Jefferson, James Madison, James Monroe, Andrew Jackson, John Tyler, James 

Polk, Zachary Taylor, and Ulysses S. Grant) at some point in their lives enslaved African 

Americans.” Many lawmakers (members of both houses of Congress) were also slave owners, 

as were those who would interpret the law (members of the U.S. Supreme Court). Not 

surprisingly, “few major decisions made by the federal legislative and judicial branches went 

against the interests of the nation’s slaveholding oligarchy, and foreign and domestic policies 

generally did not conflict with the interests of those centrally involved with the slavery 

system” (p. 56). 

 To the degree that the claims of these scholars are accurate, then the U.S. Constitution 

was no written behind a “veil of ignorance” but rather was actually a rationalization of self-

interest on the part of wealthy, large land holders and slave owners. This would make those 

parts of the U.S. Constitution that serve limited interests inconsistent with social justice. 

The criminal law defines crimes to maintain public order and to protect citizens from 

harms (Davenport, 2008).  Since government protection from willful harmful acts like crimes 

can be seen as a basic human right or need, this is consistent with Miller’s principle of “need.” 

To the degree that all citizens are viewed as a family, as noted earlier, this is especially 

important. Defining crimes to protect citizens and society is also consistent with Rawls’ notion 

that “primary goods” should be available to all because primary goods include the right of people 

to live freely and safely. 



 22 

However, from the very beginning of the criminal justice practice, there is differential 

access to law-making in the form of voting and lobbying activities (Lynch, Michalowski, and 

Groves, 2000).  The poor and people of color are underrepresented among voters and legislators 

themselves and are also least likely to donate money to political campaigns (Robinson, 2009). 

This raises the significant possibility of bias in the criminal law, the outcome being that certain 

groups have their voices and interests represented more than others and that certain acts will be 

more and less likely to be criminalized not based on degree of harm caused but instead on other 

political and ideological grounds (Reiman, 2006). Differential access to the criminal law and 

criminalization of various harms based on differential access to the criminal law are outcomes 

that are inconsistent with Rawls’ equal opportunities principle as well as Miller’s equality 

principle. To be consistent with social justice, every citizen should have an equal chance to 

influence the criminal law and have his or her interests reflected in the criminalization process. 

Further, it is obvious that the rules and procedures of criminal justice are not created 

behind a “veil of ignorance,” raising a significant possibility that criminal justice practice is not 

blind to personal preferences and may thus be created as rationalizations of self-interest 

(McGarrell and Flanagan, 1987). In fact, all criminal justice policies are lobbied for and against 

by powerful interests. Groups behind current criminal justice policy are not necessarily 

motivated by concerns for social justice. One likely outcome of this reality is that many forms of 

harmful behaviors will not be legislated as crimes and targeted by criminal justice agencies, 

simply because of who commits them. In fact, although the criminal law is aimed at protecting 

people from harmful acts, those acts that pose the greatest threats to citizens (i.e., white-collar 

and corporate crimes) are the ones that are least likely to legislated as crimes and especially as 



 23 

serious crimes (Simon, 2007).  Thus, the most dangerous criminals often do not get what they 

“deserve” (Robinson and Murphy, 2008). This is not consistent with Miller’s concept of desert. 

To reiterate, since Miller’s concept of desert is most relevant for instrumental 

associations such as work, the application of desert to the criminalization process may not be 

viewed as all as entirely appropriate. However, it is well established that being labeled a 

“criminal” and suffering sanctions from governmental institutions such as the police, courts, and 

corrections will likely produce outcomes such as “felony disenfranchisement” that interfere with 

the ability of citizens to engage in instrumental associations such as work (Sennott and Galliher, 

2006). Thus, forms of punishment such as incarceration can be seen as inconsistent with social 

justice to the degree that they interfere with one’s ability to engage in activities such as work that 

allow people to be rewarded for their contribution to society (Wheelock, 2005). 

Simultaneously, relatively minor criminals often get far more than they “deserve” based 

on the harms caused by their behaviors (Meir and Geis, 1997).  As one example, Robinson and 

Murphy (2008) demonstrate, using government data, that corporate and white-collar crime cost 

Americans at least 1 trillion dollars in direct losses every year, compared to only $20 billion in 

losses cause by street crime.  Yet, less than five percent of police officers are focused on the 

former, and about 99% of all people incarcerated in the United States are incarcerated for 

committing the latter. This is inconsistent with Miller’s concept of desert. The argument is that 

the “worst of the worst” offenders should be subjected to the “worst of the worst” criminal 

sanctions. In the United States, this is simply not the case. 

Further, crimes of the poor (e.g., theft) are at times aimed at satisfying basic human 

“needs” (Agnew, 2005).  Thus, the application of the law to stop such acts can be seen as 

interfering with social justice, at least when the means to achieve ones goals are blocked for 



 24 

reasons such as discrimination, which itself is not consistent with social justice (Simons and 

Gray, 1989) .  That is, if opportunities to succeed through legal means are not truly equally 

available to all (as they should be according to Rawls), and some people respond through 

“innovation” by creating new, illegitimate (i.e., criminal) means to achieve their goals (Merton, 

1938), then we can see the labeling of some behaviors as crimes as the criminalization of efforts 

to meet needs. 

In a nutshell, to the degree that the criminal law is aimed at the crimes committed 

disproportionately by the poor and people of color while it simultaneously ignores the harmful 

and culpable acts of the powerful (e.g., wealthy whites), it is unequal, undeserved, not focused 

on helping people achieve their basic needs, and clearly not aimed at providing the greatest 

advantage to the least advantaged. Thus, it violates Rawls’ and Miller’s conceptions of “need,” 

“equality,” “desert,” and the “difference principle.”   

Further, since police, courts and corrections enforce the criminal law (through arrest, 

conviction, sentencing, and punishment), any bias in the criminal law will logically be 

perpetuated through enforcement of that law (Reiman, 2006; Robinson, 2009; Shelden, 2007).  

This is likely the greatest threat to social justice in criminal justice practice.  As shown in Table 

2, this threat to social justice (enforcing biased law) is found in policing, courts, and corrections. 

Policing 

In policing, the Law Enforcement Code of Conduct specifies that one of the fundamental 

duties of police is to protect people’s rights, provide important services to the community, as 

well as enforce the law, prevent crime, and uphold the peace (International Association of Chiefs 

of Police, 2008).  Since all of these which can be seen as “needs” of the community and basic 

rights of the people, the written functions or roles of police are consistent with Miller’s principle 



 25 

of need and Rawls’ conception of primary goods.  Further, rights protection can be seen as a 

form of policing activity that is consistent with Rawls’ “equal liberties” principle.  One good 

example is at the point where arrest is imminent, police officers read suspects their rights to 

remain silent in order to protect their Fifth Amendment right against self-incrimination (Stuart, 

2008). 

Yet, since officers have discretion, it can be abused (Alpert, Dunham, and Stroshine, 

2005).  When it is, it leads to differential police outcomes.  For example, poor people and people 

of color are disproportionately likely to be stopped, searched, arrested, and have force use 

against them (Walker, Spohn, and DeLone, 2007).  They are also more likely to be victims of 

racial profiling (Withrow, 2005).  These are outcomes that are inconsistent with Rawls’ “equal 

liberties” as well as Miller’s “equality principle.” All citizens deserve to be treated the same by 

the police and other agents of government, unless their own actions lead them to “deserve” more 

attention. Racial profiling implies that certain groups in society are being targeted more based on 

extra-legal factors such as race rather than legal factors such as criminality (Miller, 2007). 

Further, since criminal justice involvement can interfere with legitimate opportunities 

such as school and work, it can be seen as a threat to Rawls’ “equal opportunities principle.”  

And since differential involvement with police tends to harm the least advantaged (Shelden, 

2007), it is inconsistent with Rawls’ “difference principle.” To be consistent with Rawls’ 

difference principle, activities of government institutions such as law enforcement agencies 

should be arranged to assist the least advantaged not to hinder or hurt them. 

Recall that historians have pointed out that, historically, law enforcement agencies were 

used to maintain current power arrangements. Examples include slave patrols, disruption of labor 

organizing and demonstrations, strike busting, interfering with civil rights, and so forth (Loewen, 



 26 

2007; Zinn, 2003). Clearly, this is not consistent with Rawls’ or Miller’s principles of social 

justice. 

Courts 

In courts, because of due process rights, every citizen has the right to trial, as well as 

other constitutional protections that are supposed to be upheld in an adversarial process whereby 

prosecutors and defense attorneys represent different actors in a battle to determine the truth 

(Neubauer, 2007). Due process is clearly part of Rawls’ “equal liberties” principle as well as 

Miller’s “equality” principle.  Further, efforts are made – e.g., through sentencing guidelines – to 

produce fair sentences based on legal variables such as offense seriousness and prior record, 

which is also consistent with Miller’s conception of “equality” (Walker, 2005).  Finally, there are 

clearly measures in place to protect the weak – e.g., indigent defense – and this is consistent with 

Rawls’ “difference principle” (National Association of Criminal Defense Lawyers, 2008). 

However, there is unequal access to quality defense representation in criminal cases. For 

example, those that can afford private attorneys are less likely to sit in jail awaiting trial and are 

less likely to be incarcerated upon conviction (Bureau of Justice Statistics, 2008), suggesting that 

the ability to pay for private defense protection does lead to differential outcomes.  This is not 

consistent with Rawls’ “equal liberties” or Miller’s “equality principle.” It is also a threat to 

Rawls’ “difference principle” because access to quality defense representation is not arranged for 

the benefit of the least advantaged. 

Quality of defense can be considered incompatible with Miller’s principle of “desert” for 

some clients do not have their case adequately defended based merely on their inability to pay. 

Wrongful convictions, caused mostly by overzealousness on the part of police and prosecutors, 

as well as faulty eye-witness testimony, are obviously inconsistent with the concept of “desert” 



 27 

(Bell, Clow, and Ricciardelli, 2008). This is true for two reasons: first, no one deserves to be 

punished for acts they did not commit; second, when wrongful conviction occurs, the factually 

guilty do not receive the punishment they rightly deserve; they are also free to commit further 

crimes, causing even more harm to society. 

The imbalance of power in the courts that exists in America is also not consistent with the 

values on which the court system was supposedly founded – due process and “innocent until 

proven guilty.” Currently, the prosecution has much more power than the defense as evidenced 

by more employees and a much larger budget nationwide. This threatens the ability of 

defendants to seek and obtain meaningful trials, which necessitates plea bargaining (Walker, 

2005). Research shows that plea bargaining occurs for two main reasons: first, the police make 

too many arrests; second, the courts receive only about 20% of all resources devoted to criminal 

justice, meaning they do not have enough resources to justify having a trial for every one 

accused of even serious crimes. 

The very practice of plea bargaining is not consistent with due process (Fisher, 2003), 

and thus is not compatible with Rawls’ “equal liberties” principles. In essence, the right to a 

criminal trial is more myth than fact. Plea bargaining is also inconsistent with Miller’s “equality 

principle” since plea bargaining is much more likely to occur with poor clients who are not well 

represented by quality defense attorneys (Padfield, 2009). 

Plea bargaining also tends not to assign punishments that achieve proper “desert” of 

guilty criminals. Further, plea bargaining leads to too much punishment for those who are 

innocent but plead guilty anyway (Siegel, 2005). Walker (2005) shows that both “conservatives” 

and “liberals” do not like plea bargaining because it satisfies neither the requirements of punitive 

justice or procedural justice. 



 28 

When trials (rarely) happen, they are plagued by serious threats to principles of social 

justice. For example, the “voir dire” process routinely results in African Americans being 

excused from jury service through the use of peremptory challenges (Walker, Spohn, and 

Delone, 2007). This is a significant threat to equal treatment, due process, and even “desert” (if 

defendants are convicted in part due to the racial composition of a jury). Research by the Capital 

Jury Project shows just how important the racial make-up of juries is for outcomes such as 

conviction and sentencing, even in death penalty cases where someone’s life is literally at stake 

(Brewer, 2004). 

The practice of mandatory sentencing is consistent with Miller’s principle of “desert” 

when it is utilized for the worst offenders (who thus deserve the worst punishment). However, 

mandatory sentencing is inconsistent with the notion of desert when it is used against relatively 

harmless criminals who do not deserve such punishment based on the small amount of harm they 

cause to society.  For example, “three strikes” laws have generally been used against non-violent 

offenders, leading to life imprisonment sentences. Meanwhile, white-collar and corporate 

offenders rarely are punished at all, even when serious injury or death results (Robinson, 2009). 

Three strikes laws have also been applied in a racially discriminatory manner, thereby 

threatening Miller’s “equality” principle (Macallair and Males, 1999; Brown and Jolivette, 2005; 

Rand, 2005).  

Corrections 

In corrections, inmates are classified based on various criteria including their personal 

needs, inmates are provided care by facilities, and to some degree they are offered educational 

and vocational opportunities (Clear, Cole, and Reisig, 2008).  This is all consistent with Rawls’ 

“difference principle” and Miller’s conception of “need.” Further, the protection of inmates’ 



 29 

First, Fourth, Fifth, Sixth, and Eighth Amendment rights is also consistent with social justice 

(American Civil Liberties Union, 2008). 

Yet, the limited educational and vocational opportunities available to inmates can be 

considered a threat to the “needs” of inmates (Ross and Richards, 2002).  Additionally, any and 

all unequal application of sanctions in America is a threat to Rawls’ and Miller’s principles of 

“equal liberties,” “equal opportunity,” “equality,” “desert,” and the “difference principle.” Recall 

that the practices of criminal justice institutions should respect the civil liberties of all citizens, 

should be applied in an equal fashion, should be based on desert, and should be arranged to the 

benefits of the least advantaged. 

The poor and people of color are disproportionately likely to be exposed to probation, 

jail, prison, and executions (Barak, Leighton, and Flavin, 2006). To the degree that this is not due 

to disparate criminality of these groups, it is not consistent with social justice. For example, 

African American men tend to commit roughly half the murders and robberies in the United 

States in any given year. In 2006, they accounted for 51% of those arrested for murder and 56% 

of those arrested for robbery (Sourcebook of Criminal Justice Statistics, 2008).  While some use 

these data to suggest that African Americans are thus more dangerous than whites (New Century 

Foundation, 2005), murder is but one form of culpable killing and robbery is but one form of 

taking property.  If one were to focus on all forms of culpable killing and property taking 

behaviors, the vast majority of offenders would be white, for the vast majority of white-collar 

and corporate offenders are white (Robinson, 2009).  Thus, the disproportionate focus on African 

American offenders owes itself to the fact that criminal justice agencies are aimed at pursuing 

only certain types of criminals (the street crime variety), and this is inconsistent with the concept 



 30 

of desert that is key to social justice (Lynch, McGurrin, and Fenwick, 2004; Ross and Rothe, 

2007; Rothe and Friedrichs, 2006) 

The harsh conditions of prison – commonly referred to as the “pains of imprisonment” – 

(Sykes and Western, 2007) are also a threat to social justice. While incarceration is supposed to 

achieve the goal of incapacitation for the protection of society, imprisonment entails much more 

than mere removal of one’s freedom. Inmates are routinely subjected to violence, sexual 

harassment and assault, and similar negative treatments by both other inmates and guards (Jones 

and Pratt, 2008; Wolff et al., 2007; Wolff et al., 2007b). This is not consistent with the notion of 

“desert.” Further, it may in the long term result in conditions in society upon inmate release that 

cause further harm to citizens, something that is also not consistent with social justice. 

CONCLUSION 

In this paper, I laid out the main theories of social justice of John Rawls and David 

Miller.  I then briefly identified the ways in which American criminal justice agencies help 

realize as well as interfere with achieving social justice.  When evaluating criminal justice 

practice against the social justice theories of Rawls and Miller, we see that the ideals of 

American criminal justice are consistent with social justice while many actual practices of 

criminal justice agencies make achieving social justice impossible.  That is, there is a significant 

gap between the ideals of criminal justice in the United States and the realities of criminal justice 

practice. 

Of course, American criminal justice agencies may or may not even be about social 

justice (Arrigo, 1998).  That is, one reason our “criminal justice system” may not achieve social 

justice is that it is not even aimed at doing so.  This should change.  In my opinion, criminal 

justice agencies should be set up to help achieve social justice, and should also be evaluated for 



 31 

their efforts to do so. This claim is based on the fact that citizens actually hold dear the principles 

of social justice laid out by Rawls and Miller (Miller, 2003). 

Given that people actually hold values consistent with social justice, it logically follows 

that they would not agree to many of our criminal justice practices if they were aware of them. 

That is, if we defined our criminal justice policies behind a “veil of ignorance” and blind to our 

own personal preferences, the problems we see in criminal justice practice today would not be 

present because they threaten our social justice values, as laid out in our criminal justice ideals. 



 32 

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