Jeffrey Reiman

Marxism and Criminal Justice Policy

Conventional analysis takes changes in criminal justice policy to be a response to shifts in the publics mood or to new developments in knowledge. Marxism views such policy changes as reflecting the shifting needs of the capitalist system of production. In this essay, we shall try to show how the so-called justice model in correction, the rejection of the goal of rehabilitating offenders, and the resurgence of the death penalty are characteristic responses of capitalist states to economic crisis. To do this we shall discuss how Marxism functions as a social theory, present a Marxian analysis of the current economic crisis, and then show how current developments in criminal justice policy can be understood as a response to this economic crisis .

On the Common Saying that it is Better that Ten Guilty Persons Escape than that One Innocent Suffer: Pro and Con

In Zadig , published in 1748, Voltaire wrote of “the great principle that it is better to run the risk of sparing the guilty than to condemn the innocent.” At about the same time, Blackstone noted approvingly that “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.” In 1824, Thomas Fielding cited the principle as an Italian proverb and a maxim of English law. John Stuart Mill endorsed it in an address to Parliament in 1868. General acceptance of this maxim continues into our own period, yet it is difficult (and for us so far, impossible) to find systematic attempts to defend the maxim. It is treated as a truism in no need of defense. But the principle within it is not at all obvious; and since it undergirds many of our criminal justice policies, we should be sure that it is justifiable. First, however, we must clarify what the principle means.

Utilitarianism and the Informed Consent Requirement (or: Should Utilitarians be Allowed on Medical Research Ethical Review Boards?)

Utilitarianism holds that aggregate welfare (or happiness) is the ultimate standard of right and wrong. This theory determines what is right, among the courses of action possible, by summing the gains and losses to welfare likely to result from each course of action. The right or best thing to do is the course of action that is likely to produce the greatest net sum of welfare. The problem referred to in my subtitle arises because research ethical review boards tend to insist that, to win approval, research projects involving human subjects must obtain the informed consent of those subjects. Moreover, and this is the rub, this requirement is for all intents and purposes absolute. Lack of informed consent is not treated as a welfare loss that can be compensated for by other welfare gains. Informed consent is a requirement independent of welfare gain-and-loss calculations, such that, even where there is reason to believe that a research project would serve to maximize net welfare, the review boards will not approve it unless there is provision for the informed consent of subjects. In short, these boards will do something that seems decidedly unutilitarian: They will recommend a course of action (nonperformance of a research project) though it is likely to produce less welfare than an alternative possible action (performance).

No Idea of Justice: A Social Contractarian Response to Sen and Nussbaum

In The Idea of Justice (2009) and Frontiers of Justice (2006), Amartya Sen and Martha Nussbaum, respectively, put forth their own ideas about justice and criticize social contractarian approaches to justice, with John Rawls’s ‘‘justice as fairness’’ as their main target. Both object to Rawls’s characterization of the parties in the ‘‘original position’’ (Rawls’s version of the ‘‘state of nature’’) as self-interested, and both think that, instead of focusing on the distribution of ‘‘primary goods’’ (all-purpose means, such as money), justice should be concerned with distributing the specific means that people need to realize their distinctively human capabilities. Both Sen and Nussbaum contend that justice obligates those who can to provide the disadvantaged with the means to develop and exercise their capabilities. Sen proposes as well that we think of justice in terms of the effects of social arrangements on people’s lives rather than as a matter of institutional design; that we focus more on improving justice than on determining ideal justice; that we widen the scope of justice to consider the impact of our actions on people around the globe; and that we enlarge our idea of justice by opening ourselves to the perspectives of people and cultures beyond our own. Sen believes that doing these things requires that we shift our focus to a social choice approach to justice from the social contractarian approach because he thinks that social contractarianism naturally leads to looking for principles to govern institutional design rather than looking at the impact of practices on real people’s lives. He thinks, as well, that social contractarianism leads to seeking ideal justice rather than more achievable partial improvements, and to considering justice in light only of *Jeffrey Reiman, author (with Paul Leighton) of The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice (9th ed., 2010), is William Fraser McDowell Professor of Philosophy, American University, Washington DC Email: jreiman@american.edu Criminal Justice Ethics Vol. 30, No. 1, April 2011, 23 38

The Pro-Life Argument from Substantial Identity and the Pro-Choice Argument from Asymmetric Value: A Reply to Patrick Lee

Lee claims that foetuses and adult humans are phases of the same identical substance, and thus have the same moral status because: first, foetuses and adults are the same physical organism, and second, the development from foetus to adult is quantitative and thus not a change of substance. Versus the first argument, I contend that the fact that foetuses and adults are the same physical organism implies only that they are the same thing but not the same substance, much as living adults and their corpses are the same thing (same body) but not the same substance. Against Lees second argument, I contend that Lee confuses the nature of a process with the nature of its result. A process of quantitative change can produce a change in substance. Lee also fails to show that foetuses are rational and thus have all the essential properties of adults, as required for them to be the same substance. Against the pro-choice argument from asymmetric value (that only the fact that a human has become conscious of its life and begun to count on its continuing can explain human lifes asymmetric moral value, i.e. that it is vastly worse to kill a human than not to produce one), Lee claims that foetuss lives are asymmetrically valuable to them before consciousness. This leads to counterintuitive outcomes, and it confuses the goodness of life (a symmetric value that cannot account for why it is worse to kill a human than not produce one) with asymmetric value.

The Theory of Marxian Liberalism

Abstract Marxian Liberalism is a theory of justice that results from combining the liberal belief that people have a natural right to be free from unwanted coercion, with the Marxian belief that property is coercive. This combination implies that property must be consented to by all people who do or will exist-and thus such consent must be theoretical. Theoretical consent occurs in a Marxian-liberal original position among parties whose knowledge includes Marxian and liberal beliefs. The parties find it rational to consent to a state that protects liberty, and to a system of property governed by the difference principle interpreted according to a moral version of the labor theory of value.

On Knowing One Big Thing: Thoughts on Ronald Dworkin's Justice for Hedgehogs

Unlike the fox who knows many things, the hedgehog knows one big thing. Ronald Dworkin claims that his hedgehog knows one very big thing: the unity of value. But that is not all the knowledge that Dworkin wants to establish for his hedgehog. In Justice for Hedgehogs, Dworkin aims to develop a whole moral philosophy. He wants not only to spell out and defend basic moral principles, both personal and political, but to present as well an ethical conception of the good life, an epistemology of moral reasoning as interpretation, and a defense of morality against skeptics who doubt that moral requirements or ethical values exist. This is one very busy hedgehog (1 2). The moral principles that Dworkin defends will not shock any liberals. They call for basic rights to liberty (364 78), a clear distinction between acts and omissions and a justifiable priority given to pursuit of one’s own goals (285 9), along with strict prohibitions against harming others (288 99), and requirements of aid to those who are disadvantaged for reasons outside of their control (271 84, 356 61). The political principles include a defense of democracy along with constitutionally protected basic rights (317 50, 379 99), and a ringing denunciation of recent United States Supreme Court decisions that have opened the door to increasing the influence of money in politics (397). The most controversial claims that Dworkin defends are two. First, he argues that there can be no external skepticism about morality. That is, all attempts to establish a general skepticism about moral claims rest themselves upon some moral claim or entail some moral claim. Thus, they are self-undermining. They assume the truth of the very thing whose truth they challenge. Consequently, Ronald Dworkin, Justice For Hedgehogs (Cambridge, MA: Belknap Press of Harvard University, 2011), xi 528 pp.

The bonus of bias

It is quite obvious that throughout the great mass of Middle America, far more fear and hostility are directed toward the predatory acts of the poor than the acts of the rich. Compare the fate of p...

Review essay / the scope and limits of police ethics

John Kleinig, The Ethics of Policing Cambridge: Cambridge University Press, 1996. viii + 335pp.

Book Reviews : An Eye For An Eye? The Morality Of Punishing By Death by Stephen Nathenson. Towman & Littlefield, 1987. 161 pp. cloth

promises as well to give the defenders of capital punishment a fair and openminded hearing. On the whole, he succeeds admirably in both respects, though, for reasons I shall suggest shortly, his arguments against the death penalty work more by sowing troublesome doubts in the path of capital punishment’s defenders than by proving definitively the immorality of executing murderers. The book is written clearly and without jargon. It is accessible to a general audience and should be of value to anyone interested in criminal justice. Nathanson covers the whole range of death penalty arguments, touching on the claim that execution of murderers shows respect for murder victims, deters future murderers, gives murderers what they deserve, satisfies the natural desire for vengeance or deflects that potentially disruptive desire into socially acceptable channels, and symbolizes our belief in or shared moral order. He shows that serious doubts can be raised about each