Law, Justice, and Society:

A Sociolegal Introduction

Chapter 9

The Law and Social Control

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?

The Law and Social Control

"Law varies inversely with other forms of social control"

(Black, 1976)

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

The Law as a Social Control Mechanism

The Law and Social Control

Direct/indirect Formal/informal

– Direct/formal– Direct/informal– Indirect/formal– Indirect/informal

Fourfold Typology of Social Control

The Law and Social Control

Punishment expresses social condemnation.

Deterrence is a function of punishment:– Specific (contrast effect)– General

Punishment and Deterrence

The Law and Social Control

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.

General Deterrence--Does It Work?

The Law and Social Control

Penal: subject to formal punishment; accusatory

Therapeutic: subject to formal treatment; remedial

Black’s Styles of Social Control

The Law and 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.)

The Law and Social Control

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.)

The Law and Social Control

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

The Law and Social Control

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

The Law and Social Control

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

The Law and Social Control

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)

The Death Penalty Debate: Other Cases

The Law and Social Control

Barbaric anachronism– All democracies except United States and Japan

have abolished it. No evidence that it serves as a deterrent The “brutalization effect” More costly than life sentences Possibility of executing the innocent Human life is sacred.

Arguments Against the Death Penalty

The Law and Social Control

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

The Law and Social Control

A 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

Democratic governments– Distinguish between public and private life by allowing

political pluralism and encouraging political participation

Law and Social Control of Political Dissent

The Law and Social Control

Political dissent may be combated via:• Force of arms

• Physical harassment

• Public opinion

• Limiting election laws

Law and Social Control of Political

Dissent (cont.)

The Law and Social Control

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)

Law and Social Control of PoliticalDissent (cont.)

The Law and Social Control

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

Law and Social Control of Political

Dissent (cont.)

The Law and Social Control

“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)

Law and Social Control of Political

Dissent (cont.)

The Law and Social Control

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)

Law and Social Control of Political

Dissent (cont.)

The Law and Social Control

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

The Law and Social Control

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

– 6-3 majority agreed with Judge Clarke Brown v. Board of Education required

desegregation.

Judicial Social Control–Taxation and

Representation

The Law and Social Control

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 Missouri v. Jenkins (1995) Program ended in 1999.

Judicial Social Control–Taxation and

Representation

(cont.)