Law and Justice Chapter 9 powerpoint

1. The Law and Social
Control
CHAPTER 9

2. What is Social Control?
 Defined
 Control
 Denotes restriction and supervision or regulation and
restraint
 Primary function of law is to establish and maintain social
control
 Why is social control necessary?
 Peaceful coexistence
 Predictable coexistence

3. A Typology of Social Control
 Social control classified along two dimensions:
 Direct versus indirect
 Formal versus informal
 Direct
 Coercive
 Indirect
 Persuasive and voluntary
 Better than direct control
 Two forms are not mutually exclusive
 Each supports and reinforces the other

4. A Typology of Social Control
 Formal
 Structured impersonal control exercised by state via the law
 Informal
 Begins with socialization process
 Internalization of rules of proper conduct

5. The Law as a Social Control
Mechanism
 Donald Black (1976)
 “Law varies inversely with other forms of social control”
 As informal social controls weaken, increased reliance
placed on formal legal controls
 Law is measure of failure/success of other forms of social
control
 Two dichotomies create four separate social mechanisms

6. The Law as a Social Control
Mechanism
 Nathaniel Hawthorne’s The Scarlet Letter
 Direct/formal
 Direct/informal
 Indirect/formal
 Indirect/informal

7. Punishment and Deterrence
 When people violate rules of acceptable behavior they
usually feel guilty
 In proportion to level of disapproval attached to violation
 Internal restraints not always enough
 Always been considered wise to augment internalized
rules with tangible experience of punishment

8. Punishment and Deterrence
 Punishment expresses social condemnation
 Deterrence is a function of punishment
 Specific
 Defined
 Contrast effect
 General
 Defined
 Some insist our moral conscience keeps us from
committing crimes

9. Punishment and Deterrence
 Plato’s Gyges in Lydia
 City frees us from social controls exercised by close-knit
communities of yesteryear
 Failure of informal social controls can be roughly gauged
by comparing size of legal profession in United States
with those of other countries

10. Other Philosophies of Punishment
 Philosophy of punishment involves justifying imposition of
painful burden on unwilling subjects
 Retribution
 Exemplified by “eye for an eye” concept
 Just desserts model
 Is constrained revenge
 Incapacitation
 Inability of incarcerated criminals to victimize people outside
prison walls
 James Q. Wilson (1975)

11. Other Philosophies of Punishment
 Rehabilitation
 To restore or return to constructive or healthy activity
 Based on medical model
 Views criminality in terms of “faulty thinking”
 Criminals need “programming”
 Reintegration
 Use the time offenders are under supervision to prepare
them to reenter free community as well-equipped as
possible

12. Black’s Styles of Social Control
 Penal
 Subject to formal punishment
 Assigns blame to individuals
 Assumes individuals engage in cost/benefit analysis
 Law must tip scale against crime to deter would-be criminals
 Therapeutic
 Person considered sick
 Subject to formal treatment
 Remedial
 Crime is result of environmental factors

13. Black’s Styles of Social Control
 Compensatory
 Involves some breach of obligation resulting in accused
debtor and alleged victim
 Conciliatory
 Usually involves breach in harmonious relationship between
two people who are disputants
 No necessary consideration of who is right or wrong

14. Social Control and the Criminal
Justice System
 Criminal justice system is mechanism set up for enforcing
legal social control
 Conservatives and liberals agree it does not accomplish
this well, but for different reasons:
 Conservatives
 System is too soft on crime
 Liberals
 System does not focus enough on rehabilitation

15. Is the United States Soft on
Crime?
 Belief is pervasive, but is it accurate?
 Only Russia comes close to touching U.S. rate
 Closest modern Western nation is England and Wales
 Rate is five times lower than that of the United States
 Rate per 100,000 citizens incarcerated is not same as
rate per 100,000 criminals incarcerated
 Compared to other democracies, United States is
probably hard on crime
 Softer than authoritarian countries such as China or Saudi
Arabia

16. Is the United States Soft on
Crime?
Source: The Sentencing Project (2005).
Reproduced with permission.
Comparing International
Incarceration Rates Mid-Year 2004

17. Plea Bargaining
 About 90 percent of all felony suspects plead guilty
 Conservatives
 Believe practice provides unwarranted leniency
 Liberals
 Believe it coerces suspects into surrendering Fifth and Sixth
Amendment rights
 Prosecutorial caseloads encourage use
 Bordenkircher v. Hayes (1978)
 Appears to be penalties attached to “non-cooperation”

18. The Death Penalty Debate
 Penalty subject to intense scrutiny over past three
decades
 Remains highly popular in U.S. today
 Retained by federal government and 37 states
 63 percent of American public favor
 Support waxes and wanes with crime rate
 Legal opposition has revolved around Eighth Amendment
 Very few challenges arose until 1960s

19. The Death Penalty Debate
 Furman v. Georgia (1972)
 Court decided death penalty per se was not unconstitutional
per se
 Arbitrary and discriminatory way it was imposed did violate
Eighth Amendment
 Gregg v. Georgia (1976)
 Court upheld constitutionality of bifurcated hearing process

20. The 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)
 Baze and Bowling v. Rees (2008)

21. The Death Penalty Debate
 Penalty is rarely carried out in United States today
 2014
 3,035 prisoners under sentence of death
 35 executed
 43 percent white
 42 percent black
 13 percent Hispanic
 2 percent other
 Only 1.6% were women

22. Arguments against the Death Penalty
 Barbaric anachronism
 Only Western democracy that executed anyone in 2014
 No evidence is serves as a deterrent
 The “brutalization effect”
 Existence of which has not been satisfactorily demonstrated
 More costly than life sentences
 Possibility of executing the innocent
 Human life is sacred

23. Arguments Favoring the Death
Penalty
 Deterrent effect would exist if it were imposed more
certainly and frequently
 Cost/benefit assessment
 Costly only by reason of appeals process
 Coleman v. Thompson (1991)
 Physical equivalent acts are not morally equivalent
 Misdistribution is not reflection of racial bias
 McClesky v. Kemp (1987)
 Likelihood of executing innocents is less apparent today
than in past

24. The Law and Social Control of
Political Dissent
 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

25. The Law and Social Control of
Political Dissent
 Democratic governments
 Distinguish between public and private life by allowing
political pluralism and encouraging political participation
 Political dissent may be combated via
 Force of arms
 Physical harassment
 Public opinion
 Election laws that limit participation

26. The Law and Social Control of
Political Dissent
 Espionage Act of 1917
 Smith Act of 1940
 Internal Security Act of 1950
 Communist Control Act of 1954
 USA Patriot Act of 2001

27. The Law and Social Control of
Political Dissent
 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)

28. Therapeutic Social Control: Law and
Psychiatry
 Psychiatric hospital among institutions devoted to social
control
 Parens patriae
 Mental illness versus mental abnormality
 Former Soviet Union practices versus American practices
 Kansas v. Hendricks (1997)
 Upheld civil commitment for sex offenders

29. “No Taxation Without
Representation!”: A Case of
Judicial Social Control
 Most in United States feel use of power to enforce rules
is legitimate because law itself is seen as legitimate
 Missouri v. Jenkins (1990)
 Judge Clarke ruled property tax could be raised to create
“magnet schools”
 Lawyers argued actions violated:
 Precepts of democratic control
 Article III of federal constitution
 Due process clauses
 6-3 majority agreed with Clarke

30.  Brown v. Board of Education (1954)
 Had required desegregation
 As local government had not complied with Brown, it was
judiciary’s obligation to enforce decision
 Court issued writ of mandamus
 Court order compelling public officials to do their duty
“No Taxation Without
Representation!”: A Case of
Judicial Social Control

31.  Justice Kennedy dissented on grounds that
 Represented federal bullying
 Usurpation of power of legislative branch
 Clear violation of due process
 Insult to those who want best for their children and who work
for it
 Missouri v. Jenkins (1995)
 Program ended in 1999
“No Taxation Without
Representation!”: A Case of
Judicial Social Control

32.  Case provides example of awesome power of law to
exert social control despite opposition of overwhelming
majority of citizens
 Social control by number of means necessary in all
societies
 Agents may sometimes overstep boundaries of legitimate
power
 Societies that do not hold citizens to standards of
decency are in trouble
“No Taxation Without
Representation!”: A Case of
Judicial Social Control