Effects of Affirmative Action on Criminal Justice

Affirmative action
Affirmative action is a policy that aims at remedying historical forms
of discrimination. It does so by taking active measures that guarantee
equality of opportunities among people. This implies applying measures
that curb discrimination of all forms. Affirmative action is a crucial
asset that seeks to provide persons with equal opportunities in access
to basic primary goods such as liberty, employment opportunities,
justice, and educational opportunities among others. This could not
otherwise be achieved without the application of the affirmative action
tool. Affirmative action calls for fairness among different persons
regardless of their natural contingencies such as race, gender, sex, or
ethnicity. In this paper, affirmative action will be looked at from the
American’s point of view. This is because the debate about affirmative
action began and grew rampant in America.
The importance of affirmative action lies in its ability to correct past
discriminations. It is also intended to curb and address present
discriminations. This encourages positive view of diversity in the
society. The supreme court of the United states contends that
affirmative action is a necessary and sufficient tool to address the
problem. To attain legitimacy in leadership, it is crucial to direct the
process of leadership to open opportunities for the most qualified and
talented persons from all groups of people (race and tribe among
others). This decision was arrived at in the supreme court by the
majority in 2003 Grutter V. Bollinger (Rudolph 2007).
Affirmative action policy has had a major role to play in ensuring that
women are provided with access to professional and educational
opportunities. Such opportunities had been out of their reach in before
the inception of affirmative action. Women were discriminated against in
spite of their qualifications. Other groups of individuals also faced
discrimination in a great way. They include back women and men. Compared
to the whites, the blacks were deliberately put out of reach of
employment and appointive opportunities. With affirmative action in
place, it became possible to address such issues.
Affirmative action is a fair deal in that it ensures that organizations
companies and academic institutions assess their candidates fairly and
equally. The criteria changes from color, sex, and race to merit and
qualifications. However, affirmative action faces opposition from some
sectors of society. This is because of misperceptions arising from the
majorities in society. For example, men think that women have already
attained the equality they have always wanted. The American whites think
that blacks are as better off as them as regards their health care,
jobs, and education.
To have a clear grasp of the problem of this paper, the author finds it
important to look at some historical trends in the debate of affirmative
action. The earliest form of affirmative action was stipulated by the
Freedmen`s Bureau. This bureau was created after a long civil war. It
was intended to assist the prior slaves accustom to their new status as
free men. The rationale of affirmative action in 1960s was akin. The
legal precepts to curb discrimination were not very successful in
progressing towards realistic economic justice. The blacks became
impatient with the progress of the intended impact. For this reason,
they called for more realistic measures. This led to civil unrest in
America. Affirmative action, thus, emerged to swift up this progress.
In 1961, John Kennedy (the then president of America) signed the
executive order 10925. This order put in place PCEEO (Presidents
Commission on Equal Employment Opportunity). This order stipulated that
government contractors will not be treated on the basis of their race,
national origin, or creed. This order sought to eliminate
discrimination. In 1964, the Civil Rights Act solidified affirmative
action. This prohibited discrimination in accommodation and public
education, voting, and employment in organizations holding more than
fifteen workers.
In this respect, various organizations, students, employers and other
agencies adopted affirmative action as their tool. Issues concerning
race to remedy the past discrimination were discussed. The affirmative
action triggered a reaction. The blacks resulted to a debate against
race prejudice. Opposition emerged concerning the new movement. The
opponents argued that affirmative action was a new tool for
discrimination against the whites. In the meantime, the Supreme Court
became more and more conservative regarding affirmative action. They
aimed at striking down numerous plans for action. This controversy is
evident in the present day. Roberts court in 2007 turned down two plans
(Edelman 2007).
Criminal justice
Criminal justice involves a scheme of rehearses and government
institutions aimed at maintaining social control, preventing crime, and
vindicating crime. It also aims at sanctioning law violators. A criminal
justice system is composed of the legislative responsible for creating
laws, the courts responsible for adjudication of crimes, and government
corrections which include jails, parole, prisons, and probation. The
rule of law guides the three components of a justice system. It also
incorporates investigation of crimes and the handling of violators (The
Criminal Act Appeal 1995). Today, the criminal justice system, has
undergone major adjustments. These are reflected in added liberties and
rights. The transformation is a result of changes in social, economic,
and political circumstances.
Owing to the problem of this paper, it is worth asking how does
criminal justice relate with affirmative action? Affirmative action
involves a process of identifying and rectifying injustices as regarding
the concept discrimination. With the rise of the movement, major shifts
have occurred in the justice system. The three major components of
criminal justice system have witnessed a change in their operations.
This is a result incorporating the tenets of affirmative action into the
system. Cases of discrimination are now included in a system of justice.
This presupposes change in the system to reach or maintain the status
The problem of this paper is to analyze the effects that affirmative
action has brought to the system. In this endeavor, the paper will be
guided by major theories of justice addressing affirmative action. It
will be argued that affirmative action has affected each of the
components of criminal justice system in its different way. The paper
will take a critical analytic method to reach an informed analysis. The
concept affirmative action will be traced from its historical
perspective. A critique of affirmative action will be given at the end
of the paper. Thiswill be done by looking at the major responses from
critics. It will be concluded that despite the challenges it faces,
affirmative action remains a major tool for remedying injustices.
Rawlsian affirmative action
Rawls theory of justice was designed to bring out a conception of
justice. It is a thought experiment involving a group of people in an
original position. In this hypothetical situation, people are ignorant
of their natural contingencies. They are to come up with principles of
justice to govern their operations. In such a position, the principles
agreed upon will be fair as a result of the ignorance of the social
conditions of the members. Rawls argues that people in the initial
position are likely to choose two principles of justice. The first
principle stipulates that each of them shall enjoy maximum liberty
compatible with that of others. This principle will be chosen as the
first principle of justice.
Secondly, the people at the initial position will adopt a principle that
governs the allocation of primary goods. Primary good include
opportunities and income. The principle will require that primary goods
are to be distributed equally. Any difference arising from the
distribution must be for the benefit of all. The insistence is on the
disadvantaged members of society. The inequality should better the
situation of the unwell off. Moreover without that inequality, the
unwell off would be disadvantaged (Rawls 1971). The principle advocates
for opportunities available to all without restriction of natural
contingencies. Natural contingencies include, race, ethnicity, social
status, and gender among others.
This is what Rawls called justice as fairness. It is worth noting that
Rawls did not address affirmative action directly. However, it is clear
that Rawls theory sought to correct past injustices that could have
arisen as a result of natural contingencies. If natural contingencies
are considered during allocation of opportunities, the outcome is
discrimination. Rawls is against any form of discrimination. He,
however, did not mention this in his theory of justice. His concern is,
however, evidence from the outset.
Robert Allen considers Rawls theory as addressing affirmative action. He
argues that affirmative action is meant to pay compensation to victims
of injustice. Therefore, to be disadvantaged means to have gone through
an unfair dissemination of principal goods. The distribution need to be
accounted for by the two principles of justice agreed upon in the
original situation. Affirmative action in a Rawlsian interpretation
implies correcting the unfairness Rawls describes. This is done by
applying the two principles of justice.
In Rawls account, the two principles should guide any agreement that
people settle on in the future. This includes the constitution. The law
should be formulated such that it brings to light the two principles of
justice. Any law that falls short of that is an unjust law. How does
this affect the criminal system of justice? To answer this question,
there is a need to look at the major transformations in law making, the
courts, and the correction facilities. This approach will be guided by
Rawls theory of justice.
The legislative body has witnessed several changes since the inception
of affirmative action. It has tried to streamline the law so that it
accommodates equality of liberty. Although some changes had taken place
before a theory of justice was written, it is clear that the influence
of these decisions might have come from other forms of contract theories
before Rawls. Initial laws did not recognize the importance of banning
all forms of discrimination. The first move was noticed in the United
States civil rights act of 1964. This act, as noted earlier, banned
discrimination in voting, employment, and education offered by the
government. However, this act never allowed for sanctions for those who
violate it. Rather the act sought to restore the victims to a situation
of non-discrimination. The act also created a commission to look at
equal employment opportunities.
In 1966, the labor department in United collected employment data in
terms of race. This was meant to assess the conduct in the process of
hiring. In 1968, office of federal contract compliance gave rules that
needed that targets should be met. These targets were to help in
evaluating affirmative action policies. The department of labor also set
time schedules and goals that to compare the number of women and members
of the minority groups promoted against that of men and the majority
During the same time, a number of changes were taking place in the
judiciary. The 1971 case in the Supreme Court involved Griggs and the
Duke Power Company. The Supreme Court ruled that the requirements by
Duke that unskilled laborers should provide a diploma in high school
qualification were misplaced. Equally, the requirement that candidates
for application of job in Duke should undergo IQ test were also ruled
out. This was an effort to rule out the forms of discriminations arising
from Dukes operation. It is evident that the courts were starting to
comply with the principles of justice: the principles of equal
opportunities and positions open to all.
Another major ruling was made by the Supreme Court in 1978. The case
involved University of California and Bakke. The university had set
aside some positions for the minority groups. The sixteen out of a
hundred positions in the university were to be filled by minority group.
As a result of this, Bakke was denied a position in the university
regardless of his qualifications. The court ruled that Bakke should be
admitted to the university. However, the university should continue
favoring the interests of the minority.
The promotion of affirmative action was not supported all through in
America. The Supreme Court in the 1980s sought to frustrate the
operation of affirmative action programs. During his campaigns, Regan
cautioned that the notion of equality should never be distorted by
giving guideline to the federal government on how to deal with issues of
discrimination based on race sex, and ethnicity. Rather, individual
qualification and abilities should serve as the basic guidelines in the
allocation of opportunities. When he got to power, Regans administration
weakened affirmative action a great deal. He hit on the Office of
Federal Contract Compliance by reducing its budget by twenty four
percent. The staff was cut by 34% between 1981 and 1983.
The implication of the above moves in Regan administration was that it
sought to zero down the operation of affirmative action. The principles
of equal opportunity for all regardless of their natural contingencies
were not applied. In this endeavor, the legislative body was turned to
an organ of discrimination. The courts were also not left out. Two
important rulings were made by the Supreme Court against affirmative
action. They include Watson versus Fort-worth Bank case of 1988 and the
Griggs versus Duke Power company case of 1988. In both cases, the court
demanded that the complainants give prove of their discriminatory
complains. This was an effort to turn down the case and to rule against
the complainants.
The correction facilities have problems of affirmative action. A study
on incarceration rates in the United States concluded that sentences for
imprisonment were biased against African Americans (Doob& Cheryl 2006).
The study observed that at least a third of African Americans are under
the supervision by the justice system. The black women were tremendously
increasing in prisons. It was considered evident that the US justice
system had broken down. The recommendation made from a study was that
the system should incorporate affirmative action into its operations
(Mauer 2006).
There is race bias entrenched in the United States justice system when
it comes to sentencing. There exists a culture of fear: fear of the
black man. In the legislature, difference in issuing sentences between
the whites and blacks is evident. The whites are more prevalent to drug
use and possession. However studies showed that the African Americans
contributed to sixty percent of the total number of victims incarcerated
by 1998. This shows that, despite the major transformation that the
legislative and the judiciary took in some rulings and creation of laws,
it is necessary to act in order ensure equality of opportunities. The
principles of Rawls justice are still in need of consideration.
Compensatory Justice Theory
Compensatory theory is also used in support of affirmative action. This
theory appeals to the magnitude at which victims of injustice are
compensated for the harms caused by the responsible groups. A just
compensation is considered as the one that is proportional to the harm
caused (Velasquez et al., 2005). This theory demands that the victims
should receive compensation from perpetrators of the forms of
discrimination. When applied to affirmative action, the theory takes the
victims, not as individuals but a community. This theory is concerned
about a fair treatment of social group members. It seeks to remedy past
injustices. Compensatory justice is conceived as a normative solution
for systematic prejudice. For example, consensus that discrimination and
slavery were morally wrong, it appears true that to accept benefits from
such dealings is also wrong. This is termed as te principle of
restitution. It implies that people should measure, acknowledge, and
repay the benefits that were immorally acquired. This is entirely based
on some past wrong acts. Affirmative action looked at from this theory,
is a way of offering restitution. In some instances, such policies may
lead to injustice in treating the perpetrators of the discriminations.
In the American law, there exists three major conditions for
compensatory justice (Cooley, 2003). Firstly, the act which inflicted
the harm, was negligent or wrong. The action must have injured the
victim and should have resulted from a negligent or wrong conduct on the
side of the defendant. Secondly the moral agent’s action must be the
actual cause of the resultant harm. Thirdly, the moral agent must have
caused the harm intentionally. This theory has been criticized form
various perspectives. Firstly, the cost of the compensation is being met
by a new generation other than the real perpetrators. The implication is
that the harms caused especially to the black Americans were caused by
the forefathers of the whites who are now paying it. In the case of
colonization, the actual colonizers are long gone. The colonized are
still pressing for compensation for the harms done to them.
Secondly, those who suffered from discrimination are an older generation
long gone. They do not get the compensations demanded. These
compensations are received by a new and different generation and not the
real victims of injustice. Thirdly, now that the society has gotten a
solution to the cases of discrimination and employment, affirmative
action is no longer needed. The first two criticisms indicate that the
conditions required for compensatory affirmative action have been
However, it is clear that the use of affirmative action on the basis of
the compensatory theory has had an impact on the international system of
justice. Many colonized nations are now demanding a compensation for
crimes against humanity committed against them by their colonizers. A
recent ruling was made by the United Kingdom Supreme Court. It was meant
to compensate the victims of struggle for nationalism in some African
states: Kenya and now South Africa in the line. This implies that
affirmative action has contributed positively to the compensatory
Affirmative action can also be analyzed from a utilitarian point of
view. Utilitarianism is a theory that postulates the highest good for
the largest number of people (Mill 1906). This theory demands that
affirmative action may infringe on a few individuals rights. This can
happen as long as the outcome promotes maximum general happiness. A
little harm is not perceived as being wrong. It is clear that
affirmative action results to unintended negative effects to some
individuals involved. However, a large number of people benefit from it.
For example, victims of injustice are normally many in number. The
perpetrators are a few who intentionally seek discriminate the majority.
However, in any operation such as affirmative action, there will always
result losers and gainers. The aim should be to promote the interests of
the majority. The intention, however, is not to violate the rights of
the small group of the perpetrators. The intention is to remedy the
evils of the small group of perpetrators. Affirmative action requires
that the total number of gainers outdoes that of losers. For instance,
in the allocation of opportunities, if there are only twenty
opportunities, and five are secured for the minority, there still remain
fifteen opportunities for the majority. Among the majority who lose, it
can be asked that they meet some sacrifices. Such sacrifices are minimal
compared to the evils suffered by the majority.
The application of this theory to affirmative action has also had
influence on the system of justice. Justice has seen to it that the
interests of the majority who were initially discriminated against are
met. This operation disregards the consequences of the minority who may
lose in the case. Utilitarian justice also demands that some injustice
may occur to the minority. The outcome is morally right as long as it is
the disadvantaged who gain in the operation.
To sum up this paper, it is necessary to look at some of the criticism
advanced against affirmative action. Firstly, it is argued that
affirmative action denies the whites their right (Shaw and Barry, 2004).
The whites argue that they are being discriminated against for crimes
they did not commit. They perceive themselves as circumstantial victims.
They are just correcting past injustices, which are not their fault. In
the second place, it is argued that affirmative action goes against the
principle of equality in opportunity. Racial discrimination against
racial discrimination is an absurd notion. Affirmative action aims at
reversing discrimination. It is argued that discrimination should not be
used against anyone. This implies that affirmative action solutions do
not stand at a better status than the status quo. It has the same traits
as racial, gender and ethnic discrimination.
However, the critics of affirmative action based on this argument seem
to err. If discrimination is illegitimate, then it should not have been
used against anyone in the first place. However, it was used against
some people. This logically calls for justice. The appropriate justice
is to remedy the discrimination by applying affirmative action.
Moreover, as pointed above, affirmative action does not aim at
discriminating against anyone. Any discrimination that arises is a
result of unanticipated consequences.
These criticisms seem to be the major source of the evident opposition
against affirmative action in the United States during the rule of Regan
and Bush as noted in the discussion. However, affirmative action seems
to be a powerful tool encouraging good moral norms among individuals
from diverse nationalities, race, ethnic groups, sex, and gender. It is
not a mere intention to fill quotas as was claimed by Regan in his
campaigns. It is an attempt not just to rectify past discriminations,
but also to deal with the present and future injustices. Its impact on
the criminal system of justice has not gone unnoticed. Despite the
challenges it faces from opposition, affirmative action should continue
exerting more positive changes on the system of justice.
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The Criminal Appeal Act 1995, section 8(6) The Criminal Procedure
(Scotland) Act 1995, section 194A(6)
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