Law, Justice, and Society: A Sociolegal Introduction Chapter 9 The Law and Social Control.

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