Unequal Benefits and Burdens: A Critique of the Fair Play Justification

Posted on May 16, 2013


ImageIn his essay titled “Playing Fair With Punishment,” Richard Dagger presents a clean argument for societal fairness and balance, upon which he believes lies the justification for punishment. Dagger contends that rules and conventions are necessary to govern a society, as parameters for cooperation and fairness must be well defined. Maintaining a balance between benefits and burdens is crucial to the vitality of social order, and this balance can only be preserved by the rule of law.[1] He then notes that some requirements that provide a public benefit, such as taxes and speed limits, are burdensome, and in most societies it is possible to receive the benefits of these rules without cooperating. Dagger believes that this is the crux of a justification of punishment: because social order provides public goods that can benefit those who do not cooperate equally as those who do, the practice of punishment is a necessary component of fair play.[2] In his essay, Dagger considers the many objections to the fair play justification and defends them each rather admirably. However, a crucial objection that he does not consider is the unfairness of the criminal justice system itself in regards to race. In this essay, I will critically assess the fair play justification presented by Dagger, using specific arguments put forth by Michael Tonry and Angela Davis concerning the racially driven policies of the post-Jim Crow era and the racial biases evident in police and judicial practices. I believe that Dagger’s argument is sound only if operating in a cultural vacuum. When applied to American society this argument becomes problematic in its idealism, particularly in regards to the troubling relationship between punishment and race.

Michael Tonry, in his 2010 essay, “The Social, Psychological, and Political Causes of Racial Discrimination in the American Criminal Justice System,” lays out an argument that undermines Dagger’s oversimplification, based on the historical implications of racially driven policies in the United States. Punishment in the U.S., according to Tonry, is historically connected to racial bias. In the period since Jim Crow segregation ended, policymakers intent on securing white votes have introduced crucial strategies with consequences of racial discrimination. Whether intentionally biased or not, Tonry asserts that laws such as the “100 to One” law, punishing crack offenses far more severely than those for cocaine, have had damaging effects on police practices and the American perspective of criminality in general, both of which exhibit preference for whites over blacks.[3]

Such laws are a derivation of a full-on political effort amongst conservatives in the post-Jim Crow 20th Century to maintain economic and social dominance over politically powerless minorities, namely blacks and Hispanics. One instance that best highlights the successes of this strategy is the presidential campaign of George H.W. Bush, in which his team slyly attacked his opponent, Massachusetts Governor Michael Dukakis, by plastering everywhere the face of convicted murderer Willie Horton, a black man imprisoned in Massachusetts who killed again while on a state-authorized furlough. Even though it was Dukakis’ Republican predecessor who initially adopted the furlough program, the strategy succeeded in arousing both conscious and subconscious fears among voters, fears that electing Dukakis meant allowing black murderers out of prison to strike again. The culture of fear and bias that emerges from highly visible strategies such as this one negates a crucial aspect of Dagger’s argument. “Those who enjoy the benefits of society,” he writes, “owe their own cooperation to the other members of society.”[4] Tonry would contend that because of the racial biases that materialize through unfair policies and strategies, some Americans do not enjoy the benefits of society equally to others, while unfairly carrying more of the burdens.

Angela Davis takes Michael Tonry’s assessment a step further, challenging her reader to consider the ways in which racial bias occur in police practices and legal proceedings. Tonry is right to say that policies that hold a racial bias, whether conscious or not, have created an unfair justice system. But Davis finds it important to argue that the racially biased culture surrounding law enforcement is just as detrimental to any sense of fairness among Americans of all races. In fact, her essay is a critique of an older piece by Tonry that, in her estimation, fails to recognize that racial biases in the criminal justice system helps explain a significant part of the problem.[5] Providing several examples of tendencies among police officers across the board to treat socially disadvantaged minorities unfairly (namely by stopping them more frequently), she concludes, “Because police decisions not to stop and not to arrest are not documented, it is impossible to know how much or how little arrest rates reflect actual criminality.”[6] Or, put another way, though we already know that racial biases ensures that blacks and Hispanics are arrested and prosecuted at a higher rate than whites, it is impossible to know how much these numbers are further skewed by supposed ignorance of criminal behavior among whites in police practices. Davis believes that such ignorance is present at a high level, invisibly contributing racially skewed statistics to an already racially unfair system.

Davis provides similar reasoning for legal proceedings, based on the perception that black crimes are easier to prosecute than white crimes, and that prosecution in the legal system can be equated to success. Davis again critiques an assessment from Tonry, this time for failing to recognize a wealth of literature that supports an existence of racial bias not just at the arrest level, but at all stages of the criminal process.[7] She makes an important distinction concerning autonomy among prosecutors, noting that, “prosecutors exercise a tremendous amount of discretion in most of their official decisions, particularly in charging and plea bargaining.”[8] Courts tend to stay out of the way, understanding that prosecutors possess an unmatched expertise in determining, “which cases warrant prosecution.”[9] This tremendous autonomy, Davis argues, allows prosecutors to subtly select cases based on likelihood of conviction, which the culture surrounding the criminal justice system strongly suggests is inextricably tied to racial bias. Again, this evidence of racially unjust practices, supported by unjust policies, suggests that Dagger’s argument for punishment based on fair play simply cannot apply to actual society.

If the strength of the fair play justification is its reasoning that punishment is justified because cooperation with a code of law is necessary for social order but difficult to attain, its weakness is that it fails to recognize that a code of law itself can become a society’s most intrinsic flaw. As Michael Tonry and Angela Davis argue, no equitable distribution between benefits and burdens can exist in a criminal justice system that is governed by racially unjust policies and enforced through racially biased practices. I do not reject Dagger’s fair play justification outright, because at its core it is sound. The mere threat of punishment, as he writes, is not sufficient to deter free riders to enjoy benefits without being subjected to bearing the burdens.[10] But I believe an attempt to apply Dagger’s fair play justification to the real world, even at the time of his writing in 1993, to be rather ignorant of a far more central element of justice. As Davis writes, “The focus should be on how to discover and eliminate racial bias in the criminal justice system, wherever and whenever it exists.”[11] Only in such an idealized justice system, in which benefits and burdens are indeed equally distributed, could we hold ourselves to a fair play justification for punishment.


[1] Dagger, Richard. “Playing Fair with Punishment.” Ethics 103.3 (1993): 475.

[2] (Dagger, 1993): 475.

[3] Tonry, Michael. “The Social, Psychological, and Political Causes of Racial Discrimination in the American Criminal Justice System.” Crime and Justice 39.1 (2010): 276.

[4] (Dagger, 1993): 475.

[5] Davis, Angela J. “Benign Neglect of Racism in the Criminal Justice System.” Michigan Law Review 94.6 (1996): 1663.

[6] (Davis, 1996): 1681.

[7] (Davis, 1996): 1674.

[8] (Davis, 1996): 1677.

[9] (Davis, 1996): 1678.

[10] (Dagger, 1993): 476.

[11] (Davis, 1996): 1686.

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