1. Law, Justice, and
Society:
A Sociole gal
Introduction
Chapter 9
The Law and Social Control

2. The Law and Social Control
What 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 coexistence
2. Predictable coexistence

3. The Law and Social Control
Durkheim 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. The Law and Social Control
The Law as a Social Control Mechanism
"Law varies inversely with other forms of
social control"
(Black, 1976).

5. The Law and Social Control
The 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. The Law and Social Control
Fourfold Typology of Social Control
 direct/indirect
 formal/informal
 direct/formal
 direct/informal
 indirect/formal
 indirect/informal

7. The Law and Social Control
Punishment and Deterrence
 punishment expresses social
condemnation
 deterrence is a function of
punishment:
– specific (contrast effect)
– general

8. The Law and Social Control
General 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. The Law and Social Control
Black’s Styles of Social Control
 penal: subject to formal punishment;
accusatory
 therapeutic: subject to formal treatment;
remedial

10. The Law and Social Control
Black’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. The Law and Social Control
Black’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. The Law and Social Control
Social 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. The Law and Social Control
Is the United States Soft on Crime?
Comparing International
Incarceration Rates Mid-Year
2004
Source: The Sentencing Project (2005). Reproduced with permission.

14. The Law and Social Control
Plea 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. The Law and Social Control
The 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. The Law and Social Control
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

17. The Law and Social Control
The 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. The Law and Social Control
Arguments 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. The Law and Social Control
Arguments 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. The Law and Social Control
Law 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. The Law and Social Control
Law and Social Control of Political Dissent (cont.)
political dissent may be combated via:
• force of arms
• physical harassment
• public opinion
• limiting election laws

22. The Law and Social Control
Law 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. The Law and Social Control
Law 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. The Law and Social Control
Law 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. The Law and Social Control
Law 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. The Law and Social Control
Therapeutic 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. The Law and Social Control
Judicial 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. The Law and Social Control
Judicial 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. The Law and Social Control
Judicial Social Control--Taxation and Representation
(cont.)
 Missouri v. Jenkins, 1995
 program ended in 1999