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Law, Justice, and Society:A Sociolegal Introduction
Chapter 9
The Law and Social Control
The Law and Social Control
Any action, deliberate or unconscious, that influences conduct toward conformity, whether or not the persons being influenced are aware of the process
Primary function of law is to establish and maintain social control
Why is social control necessary?
1. Peaceful coexistence
2. Predictable coexistence
What Is Social Control?
The Law and Social Control
Anomie: a condition of relative normlessness Under anomie, individuals feel less pressure
to conform Leads to deviance Note: anomie is a social construct not an
individual attribute (anomia) Social control comprises all mechanisms at
preventing anomie
Durkheim and Anomie
The Law and Social Control
Law varies inversely with other forms of social control
(Black 1976)
The Law as a Social Control Mechanism
The Law and Social Control
The use of law is therefore a measure of the failure/success of other forms of social control
Lawyers and litigation
The Law as a Social Control Mechanism
The Law and Social Control
Direct/indirect and formal/informal– direct/formal– direct/informal– indirect/formal– indirect/informal
Four-Fold Typology of Social Control
The Law and Social Control Formal Informal
Hester's arrest, trial and sentencing byagents of the state
Social shame andridicule sufferedby Hester
The threat of legalsanctions perceivedby onlookers ("itcould happen to me")
Norms reinforcedby viewing andparticipating inHester's punishment
Direct
Indirect
The Scarlet Letter—Hester Prynne
The Law and Social Control
Punishment expresses social condemnation
Deterrence is a function of punishment:– specific (*contrast effect)– general
Punishment and Deterrence
The Law and Social Control
Individuals have thresholds of deviance/normalcy—general deterrence keeps us from crossing that threshold (Plato and Gyges)
General Deterrence - Does it work?
The Law and Social Control
Penal: subject to formal punishment; accusatory
Therapeutic: subject to formal treatment; remedial
Compensatory: payment of debt Conciliatory: fair and reasonable solution
Black’s Styles of Social Control
The Law and Social Control
Penal Assigns blame to the individual Assumes individuals engage in a
cost/benefit analysis Law must tip the scale against crime to
deter would-be criminals
Black’s Styles of Social Control
The Law and Social Control
Therapeutic Crime is the result of environmental factors Or, environmental factors may affect an
individual’s ability to correctly analyze cost/benefit
Black’s Styles of Social Control
The Law and Social Control
CJ system is the mechanism set up for enforcing legal social control
How well does it accomplish this??? Conservatives and liberals agree that it does
not accomplish this well, but for different reasons. – Conservatives: the system is too soft on crime
– Liberals: the system does not focus enough on rehabilitation
Social Control and the Criminal Justice System
The Law and Social ControlIs the U.S. Soft on Crime?
Source: The Sentencing Project (2005). Reproduced with permission
Comparing International Incarceration Rates Mid-Year 2004
The Law and Social Control
About 90 percent of all felony suspects plead guilty Conservatives: unwarranted leniency Liberals: coerces suspects into surrendering Fifth
and Sixth Amendment rights Prosecutorial caseloads encourage the use of plea
bargaining
– Bordenkircher v. Hayes 1978 Appears to be penalties attached to “non-
cooperation”
Plea Bargaining
The Law and Social Control
Very popular in the United States– Retained by federal government and 37 states– 65-75 percent of Americans favor continually favor it– Also popular in Iran, China, and Vietnam
Furman v. Georgia 1972—application was unconstitutional
Greg v. Georgia 1976—bifurcated system constitutional
Woodson v. North Carolina 1976—mandatory death sentences unconstitutional
The Death Penalty Debate
The Law and Social Control
Coker v. Georgia 1976 Penry v. Lynaugh 1989 Standford v. Kentucky 1989 Atkins v. Virginia 2002 Roper v. Simmons 2005
The Death Penalty Debate—Other Cases
The Law and Social Control
2003: 3375 sentenced to death, but only 59 executed in 2004
Of those sentenced:– 56 percent white (including non-black Hispanics)– 42 percent black– 2 percent other races– 47 women
Since 1977, of those sentenced to death– 13.9 percent of whites were executed– 10.1 percent of Hispanics– 9.8 percent of African Americans
The Death Penalty Debate—Use Of
The Law and Social Control
Barbaric anachronism– All democracies except USA and Japan abolished it
No evidence that it is a deterrent The “brutalization effect” More costly than life sentences Possibility of executing the innocent (Innocence
Project) Human life is sacred
Arguments Against the Death Penalty
The Law and Social Control
Deterrent effect would exist were the penalty imposed more certainly and more frequently
Cost/benefit assessment Death penalty is costly only by reason of the appeals process
– Coleman v. Thompson 1991 Physical equivalent acts are not morally equivalent Misdistribution is not a reflection of racial bias
– McCleksy v. Kemp 1987 Likelihood of executing innocents is less apparent today than
in the past
Arguments For the Death Penalty
The Law and Social Control
A government’s need to control extremes of political dissent is even more important that its need to control crime
Authoritarian governments:– Expect conformity without political participation – divides public and
private life
Totalitarian governments:– Expect conformity and political participation – does not distinguish
between public and private life
Democratic governments– Distinguish between public and private life by allowing political
pluralism and encouraging political participation
Law and Social Control of Political Dissent
The Law and Social Control
Political dissent may be combated via:– Force of arms
– Physical harassment
– Public opinion
– Limiting election laws
Law and Social Control of Political Dissent (cont.)
The Law and Social Control
United States does a very poor job tolerating political dissent vis-à-vis other democracies
“…more than any other democratic country, the United States makes ideological
conformity one of the conditions for good citizenship” (Lipset 1964, 321).
Law and Social Control of Political Dissent (cont.)
The Law and Social Control
The Espionage Act of 1917 (Schenck v. United States 1919)
The Smith Act of 1940 Internal Security Act of 1950 The Communist Control Act of 1954 The Patriot Act of 2001
Law and Social Control of Political Dissent (cont.)
The Law and Social Control
“From the Alien and Sedition Acts during the administration of John Adams, up to the present, the Supreme Court has
never declared unconstitutional any act of Congress designed to limit the
speech of dissidents” (Greenberg 1980, 357).
Law and Social Control of Political Dissent (cont.)
The Law and Social Control
Schenck v. United States 1919 Gitlow v. New York 1925 Dennis v. United States 1951 Scales v. United States 1961 Communist Party v. Subversive Activities
Control Board 1961
Law and Social Control of Political Dissent (cont.)
The Law and Social Control
Parens Patriae Mental illness vs. Mental abnormality Soviet Union practices vs. American
practices Kansas v. Hendricks 1997 Sex offenders Homosexuals
– Bowers v. Hardwick 1986– Lawrence v. Texas 2003
Therapeutic Social Control: Law and Psychiatry
The Law and Social Control
Missouri v. Jenkins 1990 Judge Clarke ruled that property tax be
raised to create “magnet schools” Lawyers argued that these actions violated:
– Precepts of democratic control– Article III of federal constitution– Due Process clauses (Fifth and Fourteenth
Amendments) Supreme court said????
Judicial Social Control—Taxation and Representation
The Law and Social Control
6-3 majority agreed with Judge Clarke (writ of mandamus)
Brown v. Board of Education required desegregation As the local government had not complied with Brown, it
was the judiciary’s obligation to enforce the decision Kennedy dissented on the grounds that:
– Represented federal bullying– Usurpation of the power of the legislative branch– Clear violation of due process– Insult to those who want the best for their children and
who work for it
Judicial Social Control—Taxation and Representation
The Law and Social Control
Missouri v. Jenkins 1995 Program ended in 1999
Judicial Social Control—Taxation and Representation
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