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Law, Justice, and Society: A Sociolegal Introduction Chapter 9 The Law and Social Control.

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Presentation on theme: "Law, Justice, and Society: A Sociolegal Introduction Chapter 9 The Law and Social Control."— Presentation transcript:

1 Law, Justice, and Society: A Sociolegal Introduction Chapter 9 The Law and Social Control

2  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 What Is Social Control?

3 The Law and 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

4 The Law and Social Control Law varies inversely with other forms of social control (Black 1976) The Law as a Social Control Mechanism

5 The Law and Social Control  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

6 The Law and Social Control  Direct/indirect and formal/informal –direct/formal –direct/informal –indirect/formal –indirect/informal Four-Fold Typology of Social Control

7 The Law and Social Control Formal Informal Hester's arrest, trial and sentencing by agents of the state Social shame and ridicule suffered by Hester The threat of legal sanctions perceived by onlookers ("it could happen to me") Norms reinforced by viewing and participating in Hester's punishment Direct Indirect The Scarlet Letter—Hester Prynne

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

9 The Law and Social Control  Individuals have thresholds of deviance/normalcy—general deterrence keeps us from crossing that threshold (Plato and Gyges) General Deterrence - Does it work?

10 The Law and Social Control  Penal: subject to formal punishment; accusatory  Therapeutic: subject to formal treatment; remedial  Compensatory: payment of debt  Conciliatory: fair and reasonable solution Black’s Styles of Social Control

11 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

12 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

13 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

14 The Law and Social Control Is the U.S. Soft on Crime? Source: The Sentencing Project (2005). Reproduced with permission Comparing International Incarceration Rates Mid-Year 2004

15 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  Appears to be penalties attached to “non- cooperation” Plea Bargaining

16 The Law and Social Control  Very popular in the United States –Retained by federal government and 37 states –65-75 percent of Americans favor 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

17 The Law and Social Control  Coker v. Georgia 1976  Penry v. Lynaugh 1989  Standford v. Kentucky 1989  Atkins v. Virginia 2002  Roper v. Simmons 2005 The Death Penalty Debate—Other Cases

18 The Law and Social Control  2003: 3375 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

19 The Law and Social Control  Barbaric anachronism –All democracies except USA and Japan abolished it  No evidence that it is a deterrent  The “brutalization effect”  More costly than life sentences  Possibility of executing the innocent (Innocence Project)  Human life is sacred Arguments Against the Death Penalty

20 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

21 The Law and Social Control  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 – divides public and private life  Totalitarian governments: –Expect conformity and political participation – does 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

22 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.)

23 The Law and Social Control  United States does a very 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 Political Dissent (cont.)

24 The Law and Social Control  The Espionage Act of 1917 ( Schenck v. United States 1919)  The Smith Act of 1940  Internal Security Act of 1950  The Communist Control Act of 1954  The Patriot Act of 2001 Law and Social Control of Political Dissent (cont.)

25 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.)

26 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.)

27 The Law and Social Control  Parens Patriae  Mental illness vs. Mental abnormality  Soviet Union practices vs. American practices  Kansas v. Hendricks 1997  Sex offenders  Homosexuals –Bowers v. Hardwick 1986 –Lawrence v. Texas 2003 Therapeutic Social Control: Law and Psychiatry

28 The Law and Social Control  Missouri v. Jenkins 1990  Judge Clarke ruled that property tax 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

29 The Law and Social Control  6-3 majority agreed with Judge Clarke (writ of mandamus)  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 Judicial Social Control—Taxation and Representation

30 The Law and Social Control  Missouri v. Jenkins 1995  Program ended in 1999 Judicial Social Control—Taxation and Representation


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