chapter 9 power point

The Law and Social ControlCHAPTER 9

What is Social Control?

Defined Control

Denotes restriction and supervision or regulation and restraint

Primary function of law is to establish and maintain social control

Why is social control necessary? Peaceful coexistence Predictable coexistence

A Typology of Social Control

Social control classified along two dimensions: Direct versus indirect Formal versus informal

Direct Coercive

Indirect Persuasive and voluntary Better than direct control

Two forms are not mutually exclusive Each supports and reinforces the other

A Typology of Social Control

Formal Structured impersonal control exercised by state via

the law Informal

Begins with socialization process Internalization of rules of proper conduct

The Law as a Social Control Mechanism

Donald Black (1976) “Law varies inversely with other forms of social

control” As informal social controls weaken, increased

reliance placed on formal legal controls Law is measure of failure/success of other forms

of social control Two dichotomies create four separate social

mechanisms

The Law as a Social Control Mechanism

Nathaniel Hawthorne’s The Scarlet Letter Direct/formal Direct/informal Indirect/formal Indirect/informal

Punishment and Deterrence

When people violate rules of acceptable behavior they usually feel guilty In proportion to level of disapproval attached to

violation Internal restraints not always enough Always been considered wise to augment

internalized rules with tangible experience of punishment


Punishment expresses social condemnation Deterrence is a function of punishment

Specific Defined Contrast effect

General Defined

Some insist our moral conscience keeps us from committing crimes


Plato’s Gyges in Lydia City frees us from social controls exercised by

close-knit communities of yesteryear Failure of informal social controls can be roughly

gauged by comparing size of legal profession in United States with those of other countries

Other Philosophies of Punishment

Philosophy of punishment involves justifying imposition of painful burden on unwilling subjects

Retribution Exemplified by “eye for an eye” concept Just desserts model Is constrained revenge

Incapacitation Inability of incarcerated criminals to victimize people

outside prison walls James Q. Wilson (1975)

Other Philosophies of Punishment

Rehabilitation To restore or return to constructive or healthy activity Based on medical model Views criminality in terms of “faulty thinking”

Criminals need “programming” Reintegration

Use the time offenders are under supervision to prepare them to reenter free community as well-equipped as possible

Black’s Styles of Social Control

Penal Subject to formal punishment Assigns blame to individuals Assumes individuals engage in cost/benefit analysis Law must tip scale against crime to deter would-be

criminals Therapeutic

Person considered sick Subject to formal treatment

Remedial Crime is result of environmental factors

Black’s Styles of Social Control

Compensatory Involves some breach of obligation resulting in

accused debtor and alleged victim Conciliatory

Usually involves breach in harmonious relationship between two people who are disputants

No necessary consideration of who is right or wrong

Social Control and the Criminal Justice System

Criminal justice system is mechanism set up for enforcing legal social control

Conservatives and liberals agree it does not accomplish this well, but for different reasons: Conservatives

System is too soft on crime Liberals

System does not focus enough on rehabilitation

Is the United States Soft on Crime?

Belief is pervasive, but is it accurate? Only Russia comes close to touching U.S. rate

Closest modern Western nation is England and Wales Rate is five times lower than that of the United States

Rate per 100,000 citizens incarcerated is not same as rate per 100,000 criminals incarcerated

Compared to other democracies, United States is probably hard on crime Softer than authoritarian countries such as China or

Saudi Arabia

Is the United States Soft on Crime?

Source: The Sentencing Project (2005). Reproduced with permission.

Comparing International Incarceration Rates Mid-Year 2004

Plea Bargaining

About 90 percent of all felony suspects plead guilty Conservatives

Believe practice provides unwarranted leniency Liberals

Believe it coerces suspects into surrendering Fifth and Sixth Amendment rights

Prosecutorial caseloads encourage use Bordenkircher v. Hayes (1978) Appears to be penalties attached to “non-

cooperation”

The Death Penalty Debate

Penalty subject to intense scrutiny over past three decades

Remains highly popular in U.S. today Retained by federal government and 37 states 63 percent of American public favor Support waxes and wanes with crime rate

Legal opposition has revolved around Eighth Amendment Very few challenges arose until 1960s


Furman v. Georgia (1972) Court decided death penalty per se was not

unconstitutional per se Arbitrary and discriminatory way it was imposed did

violate Eighth Amendment Gregg v. Georgia (1976)

Court upheld constitutionality of bifurcated hearing process

The Death Penalty Debate: Other Cases

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)


Penalty is rarely carried out in United States today 2014

3,035 prisoners under sentence of death 35 executed

43 percent white 42 percent black 13 percent Hispanic 2 percent other

Only 1.6% were women

Arguments against the Death Penalty

Barbaric anachronism Only Western democracy that executed anyone in

2014 No evidence is serves as a deterrent The “brutalization effect”

Existence of which has not been satisfactorily demonstrated

More costly than life sentences Possibility of executing the innocent Human life is sacred

Arguments Favoring the Death Penalty

Deterrent effect would exist if it were imposed more certainly and frequently

Cost/benefit assessment Costly only by reason of appeals process

Coleman v. Thompson (1991) Physical equivalent acts are not morally equivalent Misdistribution is not reflection of racial bias

McClesky v. Kemp (1987) Likelihood of executing innocents is less apparent

today than in past

The Law and Social Control of Political Dissent

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

Political dissent may be combated via Force of arms Physical harassment Public opinion Election laws that limit participation


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


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)

Therapeutic Social Control: Law and Psychiatry

Psychiatric hospital among institutions devoted to social control

Parens patriae Mental illness versus mental abnormality Former Soviet Union practices versus American

practices Kansas v. Hendricks (1997)

Upheld civil commitment for sex offenders

“No Taxation Without Representation!”: A Case of Judicial Social Control Most in United States feel use of power to enforce

rules is legitimate because law itself is seen as legitimate

Missouri v. Jenkins (1990) Judge Clarke ruled property tax could be raised to create

“magnet schools” Lawyers argued actions violated:

Precepts of democratic control Article III of federal constitution Due process clauses

6-3 majority agreed with Clarke

Brown v. Board of Education (1954) Had required desegregation

As local government had not complied with Brown, it was judiciary’s obligation to enforce decision Court issued writ of mandamus

Court order compelling public officials to do their duty

“No Taxation Without Representation!”: A Case of Judicial Social Control

Justice Kennedy dissented on grounds that Represented federal bullying Usurpation of power of legislative branch Clear violation of due process Insult to those who want best for their children and

who work for it Missouri v. Jenkins (1995) Program ended in 1999


Case provides example of awesome power of law to exert social control despite opposition of overwhelming majority of citizens

Social control by number of means necessary in all societies

Agents may sometimes overstep boundaries of legitimate power

Societies that do not hold citizens to standards of decency are in trouble
