From Social Justice to Criminal Justice: Poverty and the Administration of Criminal Law (Practical and Professional Ethics)

309 Pages·2000·20.35 MB·English

by  William C. Heffernan

FROM SOCIAL JUSTICE TO CRIMINAL JUSTICE
PRACTICAL AND PROFESSIONAL ETHICS SERIES
Published in conjunction with the Association
for Practical and Professional Ethics
SERIES EDITOR
Alan P. Wertheimer, University of Vermont
Editorial Board
Sissela Bok, Harvard University
Daniel Callahan, The Hastings Center
Deni Elliott, University of Montana
Robert Fullinwider, University of Maryland
Amy Gutmann, Princeton University
Stephen E. Kalish, University of Nebraska-Lincoln
Thomas H. Murray, The Hastings Center
Michael Pritchard, Western Michigan University
Henry Shue, Cornell University
David H. Smith, Indiana University
Dennis F. Thompson, Harvard University
Vivian Weil, Illinois Institute of Technology
Brian Schrag, Executive Secretary of the Association
for Practical and Professional Ethics
Practical Ethics
A Collection of Addresses and Essays
Henry Sidgwick
With an Introduction by Sissela Bok
Thinking Like an Engineer
Studies in the Ethics of a Profession
Michael Davis
Democratic Disagreement
Essays on Deliberative Democracy
Edited by Stephen Macedo
From Social Justice to Criminal Justice
Poverty and the Administration of Criminal Law
Edited by William C. Heffernan and John Kleinig
FROM SOCIAL JUSTICE TO CRIMINAL JUSTICE
Poverty and the Administration of Criminal Law
Edited by
William C. Heffernan
and
John Kleinig
New York Oxford
OXFORD UNIVERSITY PRESS
2000
Oxford University Press
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Copyright © 2000 by Oxford University Press
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Library of Congress Cataloguing-in- Publication Data
From social justice to criminal justice : poverty and the
administration of criminal law / edited by William C. Heffernan and
John Kleinig.
p. cm. — (Practical and professional ethics series)
Includes indexes.
ISBN 0-19-512985-7
'1. Criminal justice, Administration of —Moral and ethical aspects-
United States. 2. Social justice — United States. I. Heffreman,
William C., 1946- .II. Kleinig, John, 1942- . III. Series.
HV9950.F79 2000
364.973-dc21 99-16817
1 3 5 7 9 8 6 42
Printed in the United States of America
on acid-free paper
Acknowledgments
Forerunners of the chapters included in this volume were first presented at
two conferences sponsored by the Institute for Criminal Justice Ethics. The
conferences were held on September 12-13, 1997, and May 29-30, 1998, at
John Jay College of Criminal Justice, City University of New York, and were
generously supported by the City University of New York and John Jay
College. During the 1997-98 academic year, one of the editors held a Rocke-
feller Fellowship in the University Center for Human Values at Princeton
University, and we are appreciative of the support that was provided through
the Center's facilities.
Much of the preliminary research for the conferences, and most of the organi-
zation, was done by Margaret Leland Smith, and the editors are indebted to her
for her talents as both an administrator and intellectual gadfly. Timothy Stevens
and Venezia Michalsen provided much-appreciated assistance with copy
editing.
We are also grateful for Alan Wertheimer's continuing interest in the pro-
ject and are pleased to see this volume in the Association for Practical and
Professional Ethics series on Practical and Professional Ethics. Peter Ohlin and
Robert Milks at Oxford University Press were always available for editorial
and production advice.
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Contents
Notes on Contributors ix
Introduction 1
William C. Heffernan and John Kleinig
1. Poverty, Crime, and Criminal Justice h25
Andrew Karmen
2. Social Justice/Criminal Justice 47
William C. Heffernan
3. Aid without Egalitarianism: Assisting Indigent Defendants 84
Loren E. Lomasky
4. Why Indigence Is Not a Justification 98
Jeremy Waldron
5. Deprivation and Desert 114
Stephen J. Morse
6. The Ethics of Punishing Indigent Parents 161
Dorothy Roberts
7. Punishing the Poor: Dilemmas of Justice and Difference 189
Barbara Hudson
8. Class-Based Remedies for the Poor 217
Paul Butler
9. Indigence and Sentencing in Republican Theory 230
Philip Pertit
viii Contents
10. Homelessness in the Criminal Law 248
Judith Lynn Failer
11. Material Poverty—Moral Poverty 264
George P. Fletcher
Index of Names 277
Index of Subjects 282
Notes on Contributors
PAUL BUTLER is associate professor of law at George Washington University.
He has published articles on criminal law and constitutional issues in the Yale
Law Journal, Harvard Law Review, Harper's, Washington Post, and several other
academic and popular media. Butler is a frequent commentator on law and
public policy issues for CNN and National Public Radio. He writes a monthly
column for the Legal Times. Prior to joining the academy Butler was a prosecutor
in the United States Department of Justice. Butler is a graduate of Harvard Law
School and Yale College.
JUDITH LYNN FAILER is an assistant professor of political science and
American studies at Indiana University, Bloomington. Her most recent publi-
cation is "The Draw and Drawback of Religious Enclaves in a Constitutional
Democracy: Hasidic Public Schools in Kiryas Joel," in the Indiana Law Journal.
She is currently completing a book entitled Who Qualifies ? Rights, Citizenship,
and Civil Commitment of the Homeless Mentally III.
GEORGE P. FLETCHER is Cardozo Professor of Jurisprudence, School of Law,
Columbia University, where he has taught since 1983. His current fields of
interest are criminal law, comparative law, torts, and legal philosophy. Among
his publications are Rethinking Criminal Law (1978), A Crime of Self-Defense:
Bernhard Goetz and the Law on Trial (1988), Loyalty: An Essay on the Morality of
Relationships (1993), With Justice for Some: Victims' Rights in Criminal Trials,
(1995), Basic Concepts of Legal Thought (1996), Basic Concepts of Criminal Law
(1998), published first in Spanish as Conceptos Basicos de Derecho Penal (1997),
and over 60 major articles.
WILLIAM C. HEFFERNAN is associate professor of law at John Jay College of
Criminal Justice and the Graduate Center of the City University of New York.
His articles on constitutional criminal procedure have appeared in numerous
law reviews. He is also an editor of Criminal Justice Ethics, a journal published
by John Jay's Institute for Criminal Justice Ethics.
BARBARA HUDSON has recently joined the Department of Legal Studies at the
University of Central Lancashire after serving for a number of years as profes-
ix