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Law, Justice, and Society: A Sociolegal Introduction

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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 ... – PowerPoint PPT presentation

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Title: Law, Justice, and Society: A Sociolegal Introduction


1
Law, Justice, and Society A Sociolegal
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
  • 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
Four-Fold Typology of Social Control
  • Direct/indirect and formal/informal
  • direct/formal
  • direct/informal
  • indirect/formal
  • indirect/informal

7
The Law and Social Control
Formal
Informal
Direct
Indirect



The Scarlet LetterHester Prynne
8
The Law and Social Control
Punishment and Deterrence
  • Punishment expresses social condemnation
  • Deterrence is a function of punishment
  • specific (contrast effect)
  • general

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

10
The Law and Social Control
Blacks 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

11
The Law and Social Control
Blacks 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

12
The Law and Social Control
Blacks Styles of Social Control
  • Therapeutic
  • Crime is the result of environmental factors
  • Or, environmental factors may affect an
    individuals ability to correctly analyze
    cost/benefit

13
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

14
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
15
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
    non-cooperation

16
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 1972application was
    unconstitutional
  • Greg v. Georgia 1976bifurcated system
    constitutional
  • Woodson v. North Carolina 1976mandatory death
    sentences unconstitutional

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

18
The Law and Social Control
The Death Penalty DebateUse 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

19
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

20
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

21
The Law and Social Control
Law and Social Control of Political Dissent
  • A governments 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

22
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

23
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).

24
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

25
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).

26
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

27
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

28
The Law and Social Control
Judicial Social ControlTaxation 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????

29
The Law and Social Control
Judicial Social ControlTaxation 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 judiciarys 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

30
The Law and Social Control
Judicial Social ControlTaxation and
Representation
  • Missouri v. Jenkins 1995
  • Program ended in 1999
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