Justice vs. Fairness

Illinois criminal-defense lawyer Jeremy Richey asks, “is it ethical to plead not guilty” when you know that you are factually guilty? He (being a criminal-defense lawyer) gets the answer right, of course: no [edit: duh, yes].

But I’ve been thinking: in addition to the fact that any boob who has ever sat through an episode of Law and Order thinks himself an expert on the criminal justice system by virtue of that experience, one of the factors that helps make serious discussion of criminal justice issues radioactive is that people think that words in the criminal justice system have the same meaning as in The World.

In The World, “not guilty” means “didn’t do it.” Not so in the criminal justice system, where it means, “the government hasn’t proven it.”

“Guilty” means “did it” in The World. Often in the criminal justice system it coincidentally seems to mean the same thing, but sometimes it instead means “the witnesses lied too well”.

“Innocent” in The World is the opposite of “guilty” — that is, factually innocent. In the criminal justice system, a factually (or actually) innocent person can be guilty. (Ask RR about that.)

Even the word “justice” in the criminal justice system doesn’t mean the same thing that it means in The World. The system is not designed to provide a morally or socially just result, that is, to punish sinners or to restore those who have been injured. It’s designed to enforce rules written by people to keep order and maintain the status quo. If maintenance of the status quo coincides with moral or social justice, it’s no more than a happy coincidence.

When those who haven’t given much consideration to the nature of the criminal justice system confuse “guilty” with “factually guilty”, “not guilty” with “innocent”, and “justice” with “fairness”, great confusion results. To remind people of this, it may be appropriate to put “justice” in doubt quotes when talking about the system.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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