Law, Justice, and Society: A Sociole gal Introduction Chapter 9The Law and Social Control
The Law and Social ControlWhat Is 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
The Law and Social ControlDurkheim and Anomie 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
The Law and Social ControlThe Law as a Social Control Mechanism"Law varies inversely with other forms of social control" (Black, 1976).
The Law and Social ControlThe Law as a Social Control Mechanism (cont.) the use of law is therefore a measure of the failure/success of other forms of social control lawyers and litigation
The Law and Social ControlFourfold Typology of Social Control direct/indirect formal/informal direct/formal direct/informal indirect/formal indirect/informal
The Law and Social ControlPunishment and Deterrence punishment expresses social condemnation deterrence is a function of punishment: – specific (contrast effect) – general
The Law and Social ControlGeneral Deterrence--Does It Work? 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 (Plato and the wag)
The Law and Social ControlBlack’s Styles of Social Control penal: subject to formal punishment; accusatory therapeutic: subject to formal treatment; remedial
The Law and Social ControlBlack’s Styles of Social Control (cont.) 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
The Law and Social ControlBlack’s Styles of Social Control (cont.) therapeutic crime is the result of environmental factors or environmental factors may affect an individual’s ability to correctly analyze cost/benefit
The Law and Social ControlSocial Control and the Criminal Justice System 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
The Law and Social Control Is the United States Soft on Crime? Comparing International Incarceration Rates Mid-Year 2004Source: The Sentencing Project (2005). Reproduced with permission.
The Law and Social ControlPlea Bargaining 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”
The Law and Social ControlThe Death Penalty Debate 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 Law and Social ControlThe Death Penalty Debate--Other Cases Coker v. Georgia, 1976 Penry v. Lynaugh, 1989 Stanford v. Kentucky, 1989 Atkins v. Virginia, 2002 Roper v. Simmons, 2005
The Law and Social ControlThe Death Penalty Debate--Use Of 2003: 3,375 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 Law and Social ControlArguments Against the Death Penalty barbaric anachronism – all democracies except United States and Japan have abolished it no evidence that it is a deterrent the “brutalization effect” more costly than life sentences possibility of executing the innocent human life is sacred
The Law and Social ControlArguments for the Death Penalty 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
The Law and Social ControlLaw and Social Control of Political Dissent 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—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
The Law and Social ControlLaw and Social Control of Political Dissent (cont.) political dissent may be combated via: • force of arms • physical harassment • public opinion • limiting election laws
The Law and Social ControlLaw and Social Control of Political Dissent(cont.) 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).
The Law and Social ControlLaw and Social Control of Political Dissent(cont.) Espionage Act of 1917 Smith Act of 1940 Internal Security Act of 1950 Communist Control Act of 1954 USA Patriot Act of 2001
The Law and Social ControlLaw and Social Control of Political Dissent(cont.) “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).
The Law and Social ControlLaw and Social Control of Political Dissent(cont.) 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
The Law and Social ControlTherapeutic Social Control: Law and Psychiatry 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
The Law and Social ControlJudicial Social Control--Taxation and Representation 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 (Fifth and Fourteenth Amendments) Supreme Court said
The Law and Social ControlJudicial Social Control--Taxation and Representation(cont.) 6-3 majority agreed with Judge Clarke 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
The Law and Social ControlJudicial Social Control--Taxation and Representation(cont.) Missouri v. Jenkins, 1995 program ended in 1999