Walsh power point_chapter 9


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Walsh power point_chapter 9

  1. 1. Law, Justice, and Society: A Sociole gal Introduction Chapter 9The Law and Social Control
  2. 2. 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
  3. 3. 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
  4. 4. The Law and Social ControlThe Law as a Social Control Mechanism"Law varies inversely with other forms of social control" (Black, 1976).
  5. 5. 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
  6. 6. The Law and Social ControlFourfold Typology of Social Control direct/indirect formal/informal direct/formal direct/informal indirect/formal indirect/informal
  7. 7. The Law and Social ControlPunishment and Deterrence punishment expresses social condemnation deterrence is a function of punishment: – specific (contrast effect) – general
  8. 8. 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)
  9. 9. The Law and Social ControlBlack’s Styles of Social Control penal: subject to formal punishment; accusatory therapeutic: subject to formal treatment; remedial
  10. 10. 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
  11. 11. 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
  12. 12. 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
  13. 13. 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.
  14. 14. 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”
  15. 15. 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
  16. 16. 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
  17. 17. 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
  18. 18. 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
  19. 19. 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
  20. 20. 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
  21. 21. 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
  22. 22. 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).
  23. 23. 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
  24. 24. 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).
  25. 25. 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
  26. 26. 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
  27. 27. 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
  28. 28. 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
  29. 29. The Law and Social ControlJudicial Social Control--Taxation and Representation(cont.)  Missouri v. Jenkins, 1995  program ended in 1999