Term Paper: Law and Social Justice

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¶ … Social Justice -- Kantian Paradigm

The United States Supreme Court made a judgment in 1976 to allow the fifty states to reinstate capital punishment if they wish to. The state that has put the most convicted criminals to death is Texas. A New York Times article in October, 2011, points out that in his 11 years as Texas Governor, Rick Perry -- a candidate in the Republican Party for president of the United States -- there have been 236 people put to death through capital punishment. Although the governors in Texas do not have a firsthand role vis-a-vis decisions about who dies in Texas' capital punishment cases, Perry made one very controversial decision in 2004. He refused to commute the death penalty for a man that was diagnosed with paranoid schizophrenia, even after the parole board (a very conservative group of hard-liners) voted "unexpectedly to commute" Kelsey Patterson's death sentence (Sontag, 2011).

In fact the U.S. Supreme Court has banned the execution of mentally retarded, Sontag explains in the article, and certainly serious paranoid schizophrenia is a form of retardation. The jury in fact ruled Patterson incompetent to stand trial. So why did Perry authorize the killing of a man who had to be gagged with duct tape in the courtroom because he was wildly out of control.

The Kantian Paradigm in this case is interesting because Immanuel Kant believed that certain kinds of actions (being a liar, murdering someone, stealing from someone) was prohibited, and that stood even in instances where the action might bring about "more happiness than the alternative" (Sacramento State University) (csus.edu).

If killing is wrong, then Rick Perry violated Kantian ethics. Yes, Patterson killed two people that got him on death row to begin with, but he is not a sane person, and cannot be judged along with others who commit heinous crimes but are ruled fit to stand trial. Kant argued that a person's acts -- are they good or evil acts -- depends not on the consequences of the actions but rather on the motivation of the actions. What caused Rick Perry to decide to put a severely mentally disabled person to death -- what were his motivations in doing so? There could be no doubt that Patterson was incompetent mentally. He in fact lived in an "elaborate delusional universe," Sontag writes in the Times. Patterson believed that some kind of remote control device had been implanted in his body when he was 6 years old, and that "…his name had been inscribed in a registry of 'hell pledges' kept behind the counter of a local store, Cavender's Boot City" (Sontag, p. 5).

In the Kantian Paradigm, the "Formula of Universal Law" states that one should act only on that maxim through which you can at the same time will that it should become a universal law [of nature]." It seems unlikely that putting to death a severely disturbed, mentally disabled person is the kind of activity that any responsible person would want to become a universal law. If that were to become a universal law, mercenaries could justify going into mental hospitals and killing all those who are mentally disabled.

For Kant, the moral worth of an action can only be determined by examining the motivation of the action. In Perry's case, his rhetoric during various Republican debates seems to indicate he is motivated by his own need to seem like a tough governor, a hard line far right wing attitude that he believes will get him votes from conservatives like the "Tea Party" group. He stated in a debate in Simi Valley, California: "In the state of Texas, if you come into our state, and you kill one of our children, you kill a police officer…you will face the ultimate justice in the state of Texas, and that is, you will be executed" (Sontag, p. 3). Perry more accurately could have added, "whether you are mental stable or severely mentally handicapped you will be put to death if you kill someone in Texas." Of course if Perry denied that he had put a man to death that was mentally incompetent, that would be a lie, and Kant's view was if a person lies, that person is saying it is always permissible to lie, for anyone, anywhere, for any reason.

Law & Social Justice -- Conflict Theory Paradigm

Without going deeply into the conflict theory it can be said regarding the basic concept of the conflict theory that Rick Perry fits quite well with reference to his callus decision to put to death a man that is clearly incompetent. That is, the criminal justice system favors the rich, the powerful, and social elites, according to Florida State University (fsu.edu). The policies devised by the powerful -- politically powerful in this context -- keep the poor and those that don't have much in the way of social resources from upsetting those that do have social resources.

In conflict theory legal rights of less fortunate people can easily be ignored, because the poor don't have high-priced lawyers to assure justice under the constitution. It does seem true that the "little guy" -- people without means and lacking political clout -- gets punished very severely for petty crimes (pushing drugs can get you 10 years in federal prison) while some business crimes are not treated so harshly. An interesting example of this paradox is pointed out in Psychology Today (Barber, 2010).

The little guy in this case, the person that conflict theory claims always gets the short end of the stick, was the sucker in the most recent financial meltdown on Wall Street and across the nation. Banks used "fraudulent loan vehicles that were designed to make mortgage holders default," Barbara writes. Banks then bundled up junk mortgages into "investment grade" bonds with the "collusion of corrupt rating agencies." This was a gamble on the part of Wall Street and bankers across the country which led to the loss of household wealth, the recession worldwide, the loss of "tens of millions of jobs" and yet, Barber correctly states, "no successful charges have been brought against the banks or Wall Street firms who precipitated the collapse."

And who got punished in this financial mess? The little guys, the homeowners who had to foreclose, the workers who lost their jobs due to the recession caused by Wall Street. And on top of it, the federal government bailed out the banks that had cheated on their customers. From the Marxist perspective -- from which conflict theory is largely derived -- when modern capitalist societies are controlled by a few (bourgeoisies) that control production, banks, and the technologies, everyone else is "reduced to the lot of being wage laborers." That isn't to say that Patterson is one of those unfortunate souls that got burned because of banks' arrogance and immoral / unethical manipulation of home loans.

However, the conflict theory paradigm fits Perry perfectly; he is the elite power person as a politician, which shows in the fact that he appointed over 900 of his top political campaign donors -- and some of their spouses -- to government posts in Texas, according to reports. As recently as August, 2011, Perry appointed Dan Friedkin, who is chairman and CEO of the Friedkin Group, to become the head of the Texas Parks and Wildlife Commission. The Friedkin family (including Dan and his father Thomas) have contributed more than $700,000 Perry's Texas state campaign organization called "Texans for Rick Perry" (Murphy, et al., 2011).

The "radical criminology" branch of the conflict theory holds that the powerless will be monitored very closely while the rich and politically powerful seem to get away with unethical behaviors in a routine manner. Federal law limits the amount of money that a candidate can receive, but Texas does not limit the amount of money that an individual may give to a "nonjudicial candidate," Murphy explains. Perry in fact hands out "tax breaks, contracts and appointments to his strongest supporters and the businesses they own," Murphy explains. Craig Holman, with the consumer watchdog organization "Public Citizen," calls Perry's political activities "pay-to-play politics at its worst" (Murphy). In addition to putting mentally disabled men to death, Perry keeps his presidential hopes alive by receiving cash and doling out government favors. If he were to be elected, and that's a long shot, one can only imagine all the federal power he would have to give appointments in turn for cash contributions.

Law & Social Justice -- Rawlsianism Paradigm

Rodney G. Peffer, professor in the Department of Philosophy at the University of San Diego, offers a view of Rawlsianism that can be linked quite seamlessly with the Rick Perry article both in Perry's membership in the elite political money genre, and in Perry's decision to put a mentally deranged person to death through capital punishment.

Social and economic inequalities are to be justified "if and only if they benefit the least advantaged consistent with the just savings principle," Peffer… [END OF PREVIEW]

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