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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 coexistence2.Predictable coexistence
What Is Social Control?
The Law and Social Control
"Law varies inversely with other forms of social control"
(Black, 1976)
The use of law is therefore a measure of the failure/success of other forms of social control.
The Law as a Social Control Mechanism
The Law and Social Control
Direct/indirect Formal/informal
– Direct/formal– Direct/informal– Indirect/formal– Indirect/informal
Fourfold Typology of Social Control
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
Two camps:– Little evidence of a general deterrent
effect (Whitman, 1993)– Individuals have thresholds of
deviance/normalcy; general deterrence keeps us from crossing that threshold.
General Deterrence--Does It Work?
The Law and Social Control
Penal: subject to formal punishment; accusatory
Therapeutic: subject to formal treatment; remedial
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 (cont.)
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 (cont.)
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 United States 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
Appear to be penalties attached to “non-cooperation”
Plea Bargaining
The Law and Social Control
Penalty popular in the United States– Retained by federal government and thirty-seven
states– 65–75 percent of Americans 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) Stanford v. Kentucky (1989) Atkins v. Virginia (2002) Roper v. Simmons (2005) Baze and Bowling v. Rees (2008)
The Death Penalty Debate: Other Cases
The Law and Social Control
Barbaric anachronism– All democracies except United States and Japan
have abolished it. No evidence that it serves as a deterrent The “brutalization effect” More costly than life sentences Possibility of executing the innocent 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 than its need to control crime.
Authoritarian governments– Expect conformity without political participation—divide
public and private life Totalitarian governments
– Expect conformity and political participation—do 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 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 PoliticalDissent (cont.)
The Law and Social Control
Espionage Act of 1917 Smith Act of 1940 Internal Security Act of 1950 Communist Control Act of 1954 USA 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 versus mental abnormality Soviet Union practices versus 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 could be raised to
create “magnet schools.”– Lawyers argued that these actions violated:
Precepts of democratic control Article III of federal Constitution Due process clauses
– 6-3 majority agreed with Judge Clarke Brown v. Board of Education required
desegregation.
Judicial Social Control–Taxation and
Representation
The Law and Social Control
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 Missouri v. Jenkins (1995) Program ended in 1999.
Judicial Social Control–Taxation and
Representation
(cont.)