walsh power point_chapter 9

Law, Justice, and Society:

A Sociolegal Introduction

Chapter 9

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?


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

Durkheim and Anomie


"Law varies inversely with other forms of social control"

(Black, 1976).

The Law as a Social Control Mechanism


the use of law is therefore a measure of the failure/success of other forms of social control

lawyers and litigation

The Law as a Social Control Mechanism (cont.)


direct/indirect formal/informal direct/formal direct/informal indirect/formal indirect/informal

Fourfold Typology of Social Control


punishment expresses social condemnation

deterrence is a function of punishment:– specific (contrast effect)– general

Punishment and Deterrence


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)

General Deterrence--Does It Work?


penal: subject to formal punishment; accusatory

therapeutic: subject to formal treatment; remedial

Black’s Styles of 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.)


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.)


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


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


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


Coker v. Georgia, 1976 Penry v. Lynaugh, 1989 Stanford v. Kentucky, 1989 Atkins v. Virginia, 2002 Roper v. Simmons, 2005

The Death Penalty Debate--Other Cases


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 Death Penalty Debate--Use Of


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

Arguments Against 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

Arguments for the Death Penalty


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

Law and Social Control of Political Dissent


political dissent may be combated via:• force of arms• physical harassment

• public opinion

• limiting election laws

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).


(cont.)


Espionage Act of 1917 Smith Act of 1940 Internal Security Act of 1950 Communist Control Act of 1954 USA Patriot Act of 2001


(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).


(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


(cont.)


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


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

Judicial Social Control--Taxation and Representation


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


(cont.)


Missouri v. Jenkins, 1995 program ended in 1999


(cont.)

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