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 Letter—Hester 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/normalcy—general deterrence keeps us from crossing that threshold (Plato and Gyges)

10. 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

11. 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

12. 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

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

17. 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

18. 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

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 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

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 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????

29. 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

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