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Promseminar SAR 3
Marcos Corley
University of Texas at Arlington

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Abstract
This essay explores the division in all of the aspects of distributive and restorative justice
in an effort to show which one provides the more justice to the people. Analysis is
provided for how these theories affect law enforcement policy, court functions, and
public perception of the justice system. The analysis of these topics leads to the final
understanding of whether or not procedural fairness does uphold justice to the degree that
some scholars claim.

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There are a vast number of theories that suggest how a criminal justice system
should enforce the law. All of which are meant to uphold the most just system possible
for everyone under it. The biggest problem with them is that the theories conflict in their
suggested policy implications. In the end, logic would dictate that there is one theory that
provides the most justice. The main conflict in the U.S. falls under the categorical
differences between distributive justice, which is the status quo, and the new ideas of
procedural justice, which seeks to identify more effective policy standards than those that
are currently in act. In order to understand the over arching conflict between the schools
of thought and identify which creates a more just society there are three main conflicts
that need to be compared and analyzed: how the theories affect law enforcement, the
courts, and the public’s perception of the court system, which will lead to an answer as to
which achieves the most justice.
When it comes to policy on how law enforcement should facilitate justice there
are two theories: The deterrence theory and the restorative justice theory. The deterrence
theory is the concept that people will not commit crime if they weigh the possibility of
getting caught and the severity of their punishment against the potential reward for their
actions. The idea is that most people will only break a law if the punishment is worth the
risk, so punishment for crimes should be severe. Even the broken windows theory which
is derived from the deterrence theory has undertones implying a the active search for
things that need to be met by law enforcement in order to prevent crime from ever taking
place (Ismalini, 2011). Restorative justice on the other hand seeks to mend that which
was broken by a breach in social contract. While the intent of restorative justice is to
restore order to all violations, there are very specific applications being used today. The

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best example is the use of problem-solving courts, which make an attempt to address
issues on a case-to-case bases. This is done to preserve the potential of some offenders
and do what is possible to rehabilitate them, rather than delivering the same punishment
to everyone regardless of the circumstances. Drug courts are the most commonly known
problem solving court, which focus on juvenile drug offenders and their potential to live
a productive life after one mistake. On a technical level this is an unfair system for long-
term drug offenders because there is special provision under the law, the public accepts it
because of the inherent difference in lifetime offenders and first time juvenile offenders
(Ismalini, 2011). So, restorative justice suggests that there needs to be a shifted focus
from everything being fair to everyone all the time and make an attempt to cause the most
balance and achieve justice beyond the scope of equality.
The difference between restorative justice and deterrence theory greatly impacts
criminal justice policy. Deterrence theory dictates that those enforcing the law be as cold
and unbending as the law itself in order to preserve technical fairness in society as much
as possible. Whereas, policy constructed under restorative justice principles suggests that
those enforcing the law be more compassionate and observe the circumstances of a
situation and if possible.
The second measure for this analysis is in the difference in how court hearings are
handled. The two major planks for how the courts handle offenders are: due process
considerations and procedural fairness. Due process considerations are the rules and
regulations the courts use to ensure fairness. Due Process is the right that is extended to
all people by the 14th amendment of the constitution. The amendment states that everyone
has the right to a fair trial regardless of race, gender, or any other defining characteristic.

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Due process consideration, in essence, is the burden of the court to uphold fairness ends
at the assurance that everyone has a fair trial and proper defense. Procedural fairness goes
beyond due process, founded in the idea that people should perceive that they are being
treated fairly during their trial. Rather than just assuring the trial itself, procedural justice
attempts to make people feel they have experienced respect, neutrality, participation, and
trustworthiness (Ismalini, 2011). It enhances the feeling of fairness that is lost in some of
the inherently dehumanizing aspects of the court. The easiest way for someone to
experience all of these feelings, is to grant people more than just the right to stand in
court and watch a process they don’t fully understand, being defended by someone they
don’t know, and issued a punishment for actions that they don’t feel they got the
opportunity to explain.
The difference between due process and procedural fairness in courts is important
because of the implications they hold for the development of criminal justice policy. The
policies in question include a change in the way people are treated while on trial and
managing a way to provide a voice to a person who is in court and feels as if they cant
defend themselves or that they are a nameless case in a flurry of drama. These
implications are important because public perspective has major influence on the over all
legitimacy of the courts.
When it comes to public perception there are two points of focus that the courts
can use, which are: distributive justice and procedural fairness. The public has varied
reviews on distributive justice because of the inherent fact that some laws are unjust.
These unjust laws are not just a potential outcome, but have historical precedent under
distributive justice and often create hostile policy procedures that inadvertently violate

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the social contract they are meant to uphold. In the eye of the public it does not matter if a
decision was made legally, considering the government wrote and upholds the laws, but
rather if it was done fairly. Procedural fairness is different in the way that it focuses on
public perception (Tyler, 2002). The California Study of Personal Experiences With the
Police and the Courts, presented in the book “Trust in the Law” by Tom Tyler shows the
difference between how the public felt about their treatment in different courts that
upheld either procedural fairness or distributive justice. The study indicates that people
were more likely to feel that they had been treated fairly and that they are content with
the outcome, even if undesirable, through the plank of procedural justice. This happens
mostly because of the fact that procedural justice is geared specifically to ensure that the
people feel they have been treated with respect and that their voice has been heard (Tyler,
2002).
The differences between the public’s perception of distributive justice and
procedural fairness are paramount to the maintenance and functionality of a justice
system. An example of the impact that perception has occurred in the Tennessee V
Garner case in 1984 when a police officer shot an unarmed 15 year old who was a
suspect of robbery and fleeing from the police when commanded to stop. The police
officer who shot the boy was found to be legally justified through the idea of distributive
justice which allowed for the shooting of a fleeing felon in order to discourage criminals
in the future from running away from the police (SCOTUS, 1985). However in the public
view this law allowed for actions by the police officer that were not just, which led to a
changed policy in favor of one that upholds procedural fairness. In this case, procedural

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fairness provided for due process rights more than distributive justice, which created a
strengthening of legitimacy in the long run.
All of this analysis leads to the major question of whether or not procedural
fairness does actually provide for a more just society than we see in the status quo. The
simplest answer to this can be found in the studies done on how people perceive justice
under the parameters established by distributive justice and procedural justice, which
imply that yes, there is reason to believe that procedural justice provides for a more just
society overall (Tyler, 2002). Justice shifts according to the interpretation of the people
who demand it. Because of the inherently subjective nature of this ideal it is important to
establish the highest possible point of unity between people and their government. This is
done only when they feel that they are being treated fairly, and with respect on an
individual level, rather than fairly being subject to the exact same punishment regardless
of the fluid dynamics of every legal situation (Tyler, 2002). The research shows that the
procedural justice focus on the scope of procedural fairness should be more finely tuned
keeping sight on the importance of maintaining a just society.
In conclusion, the effort of maintaining a fair and balanced justice system can be a
trying task due to the subjective nature of how justice is defined. Theories on how it
should be managed have come into conflict with the main area of dispute being
distributive justice versus procedural justice. Analysis has been provided on how they
affect law enforcement, court functions, and public perception. This comparison led to
the findings that procedural justice provides for a more just society and should be held as
paramount when constructing criminal justice policy.

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References
Supreme Court of the United States. (1985). Tennessee v Garner.
http://caselaw.findlaw.com/us-supreme-court/471/1.html
Tyler, T. R. & Huo. Y. J. (2002). Trust in the law: Encouraging public cooperation with
the police and courts. New York: Russell Sage Foundation.
Ismalili, K. (2011). U.S. Criminal Justice Policy. Sudbury, Ma: Jones & Bartlett Learning