Download Chapter 9

Law, Justice, and Society:
A Sociolegal Introduction
Chapter 9
The Law and Social Control
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
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
The Law and Social Control
The Law as a Social Control Mechanism
Law varies inversely with other forms of
social control
(Black 1976)
The Law and Social Control
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 and Social Control
Four-Fold Typology of Social Control

Direct/indirect and formal/informal
– direct/formal
– direct/informal
– indirect/formal
– indirect/informal
The Law and Social Control
Formal
Direct
Indirect
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
The Scarlet Letter—Hester Prynne
The Law and Social Control
Punishment and Deterrence
Punishment expresses social
condemnation
 Deterrence is a function of
punishment:

– specific (*contrast effect)
– general
The Law and Social Control
General Deterrence - Does it work?

Individuals have thresholds of
deviance/normalcy—general
deterrence keeps us from crossing that
threshold (Plato and Gyges)
The Law and Social Control
Black’s Styles of Social Control




Penal: subject to formal punishment;
accusatory
Therapeutic: subject to formal treatment;
remedial
Compensatory: payment of debt
Conciliatory: fair and reasonable solution
The Law and Social Control
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
The Law and Social Control
Black’s Styles of Social Control



Therapeutic
Crime is the result of environmental factors
Or, environmental factors may affect an
individual’s ability to correctly analyze
cost/benefit
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
The Law and Social Control
Is the U.S. Soft on Crime?
Comparing International
Incarceration Rates Mid-Year
2004
Source: The Sentencing Project (2005). Reproduced with permission
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
Appears to be penalties attached to “noncooperation”
The Law and Social Control
The Death Penalty Debate

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 Law and Social Control
The Death Penalty Debate—Other Cases





Coker v. Georgia 1976
Penry v. Lynaugh 1989
Standford v. Kentucky 1989
Atkins v. Virginia 2002
Roper v. Simmons 2005
The Law and Social Control
The Death Penalty Debate—Use Of


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 Law and Social Control
Arguments Against the Death Penalty

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
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
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 – 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
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
The Law and Social Control
Law and Social Control of Political Dissent (cont.)
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).

The Law and Social Control
Law and Social Control of Political Dissent (cont.)

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
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).
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
The Law and Social Control
Therapeutic Social Control: Law and Psychiatry
 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
The Law and Social Control
Judicial Social Control—Taxation and Representation



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????
The Law and Social Control
Judicial Social Control—Taxation and Representation




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
The Law and Social Control
Judicial Social Control—Taxation and Representation
Missouri v. Jenkins 1995
 Program ended in 1999
