The law and social control / change I guess

McDonald v. Chicago

case about gun laws and who has the right to wear or carry or use weapons when and how and if there should be any limits on that ability.

this case was ignored by DCB v. Heller on the right to bear arms. anyway, in 2010, there have been an abdication on the behalf of government to manage handguns. Thus, city wide hand gun ban was put in place.

Otis McDonald kept a hand gun to protect his property from drug dealers etc.. He challenged the ban of handguns, the supreme court did not keep their interpretation narrowed, instead they broke the second amendment.

However legitimate the purpose of the law was, the standard that we are going to apply for the regulation of handguns is what is caused strict scrutiny, to be the most skeptical to ban / prevent access to weapons.

All of the city and all of states have to pass laws that are consistent with the right to bear arms

what is social control

Is an action that is deliberate or unconscious that encourages conduct toward conformity whether or not you are aware of it. law is a form of formal social control.

One of the primary functions of law is to maintain / keep social control. In this sense, it is to restrict, supervise, which is necessary to maintain order in a chaotic world.

In order to have a peaceful and predictable coexistence - we want to predict how people will behave in relation to our own standards.

social control has two dimensions

1. direct and indirect and

2. 2. formal vs informal.

These forms are not mutually exclusive as each supports and reinforces the other. the indirect methods are often better

direct formal

coercive (state, red light)

direct informal

household rules, established and maintained but are not codified or require specific sanctions

Indirect informal

norms and folkways. nobody compelling behaviour out of you but there is social pressure to act a certain way

Indirect formal

surveillance camera, teacher walking around room during test.

Donald Black

as informal social controls weaken, there is increased reliance placed on formal legal controls to keep people in line as social bonds are not as strong, typically seen in the durkhiemian view.

He states that law is a measure of failure / success of other forms of social control which is the new spin on durkheims mechanical and organic solidarity.

Formal control is structured impersonal control excerised by state via law.

Informal social control always begins with socialization to internalize rules of proper conduct to create feelings of guilt or shame

Punishment and Deterrence

when people violate rules of acceptable behaviour they usually feel guilty, in proportion to level disapproval attached to violation.

Eventually, internal restraints will not be enough because not everyone develops internal restraints to the same degree.

Punishment expresses social condemnation, to reinforce the acceptable rules through reward.

two types of deterrence

general and specific.

general -  punishment of one person is intended to discourage the general public from committing similar crimes.

Specific -  individual who has experienced legal punishment is less likely to commit future crimes because they fear experiencing the same punishment again

Social Control and the Criminal Justice System

is a mechanism set up for enforcing legal social control.

Conservatives - system too expensive, and too soft on crime.

Liberals - system does not focus enough on rehabilitation. F

First Step Act - reduce amount of time spent in prision for non violent crimes and to reduce the frequency at which drug crimes get mandatory impriosnment, and to avoid using incarceration at all when there was no direct threat to life or liberty.

"reverse Onus"

the defendant must prove why they should be released and allowed bail. this does not do anything to prevent it from happening in the first place.

formal social control

limits on behaviour with the goal of compelling a standard for obedience.

The criminal justice system is the method in which we enforce that standard.

Deterrence must be swift, certain and proportional. The CJS cannot sanction every crime committed.

Plea Bargaining

informal process that occurs within the bounds of criminal justice system that is a contract.

It is an exchange which goes - offender will plead guilty but they want something in return (compensation), which depends on what the offender wants and how good they are at negotiating.

90% of cases end in plea bargain, which is a by product of the CJS facing pressures.

ex - Has innocent people pleading guilty based off the chance of potentially not getting an acquittal in trial

Trial penalty

leverage this over someone pleading guilty, and if they do not accept, they'll increase the charges which encourages peoples to take up plea bargains rather than insisting their innocence.

Death Penalty

the ultimate formal sanction.

the most formal level of social control for only the most heinous offenders, like homicide cases.

Last person to receive the death penalty was in 1962 in Canada, although public opinion is for this social control thru the increase access of media attention on crimes and believe it is a strong deterrent

the death penalty debate

Penalty is rarely carried out in the USA. Over 3,000 people on death row.

favouring - would be more effective if imposed more often, costly only by appeal process, save money, reduce burden on CJS and physical equivalent acts are not morally equivalent.

against - lack of respect for life, no evidence that it serves as a deterrent, more costly than life sentences, and possibly executing the innocence.

result - it remains popular in the US. Legal opposition has revolved around the eight amendment. 1972 Furman v. Georgia - Court decided death penalty is not unconstitutional but the methods they used were

Law and social control of political dissent

government need to control extremes of political dissent is more important that controlling crime.

Cannot protest in certain areas. Political dissent can be combated via - force of arms, physical harassment, public opinion, election laws that limit participation.

this is because all laws are subjected to the first section "reasonable limits' that the government can put limits on things and justify it. examples - laws against draft dodging, espionage act 1917, patriot act 2001

therapeutic social control

disproportionally incarcerate the mentally ill and offload them onto first responders.

Victimless crime

crimes where harm occurs primarily to the participating individuals themselves.

Society views these acts as morally repungant. crimes that involve an element of consensual exchange.

mala prohibita - behaviours made criminal by statue. mala in se - evils in themselves with public agreement on dangers they pose.

ex - drug addiction - 1908 prohibit the sale for other than medical purposes which was the result at a moral panic, by 1911 there was no more exceptions because informal social control was failing. this formal social control was ineffective but allows those in power to feel that the law is serving a purpose and strengthen community confidence in the police

war on drugs 1983

to target crack cocaine. this only starts when inner city gangs use handguns to protect their territory. this does not increase drug treatment rates or the opinion of the law but does increase the amount of incarcerations.

In Canada the drugs are meth or fent that it is cheaper, more effective but for fent - bc of the rise of prescription oxycotton so the government regulates the perscripton. consumer countries were the ones that were affluent and producing countries are economically suffering

alternatives to the war on drugs

1. consider drug use and addiction as a medical problem.

2. 2. legalization or decriminalization of drugs

civil commitment. - two formal legal principles

1. the right and responsibility of the state to assume guardianship over individuals suffering from some disability.

2. 2. police power within constitutional limitations to take steps necessary to protect society. we see this play out in institutionalization and this process relies on the medicalization of deviance. and foster care

medicalization of deviance

we define some behaviours as manifestation of an illness and the appropriate response to this is medical in nature through the police to enforce this treatment.

this is typically done because the individual poses a risk or a dangerousness to society or themselves

Parens patriae

the idea that the state is allowed to operate in the best interest of the child. and that the state is the most capable for determining that.

ex - the state believes they can force the mother to get supports because she is doing damage to their baby. it doesnt work but it allows that to be implemented in the future

institutions

1 in 12 will spend some time in mental institutions. there is a move to treat teen deviance with medical treatment. legally, responsibility or deviance lies in the individual

Bedford 2013

Canada did not criminalize sex selling itself, but the circumstances surrounding the sale were heavily criminalized and could be prosecuted for living off the money that you made from the sale of sexual services, or selling sex in a regulated manner, and advertising.

This affected sex workers and their clients. Prior bedford, women were arrested and charged "ancillary offences". the way the ancillary offences were designed made the selling much more dangerous and infringed on section 7.

This case went to the supreme court, because the actual selling of sex wasnt illegal, theres not purpose for the ancillary offences. The court agreed with bedford that the ancillary offences were disproportionate to the harm they were seeking to prevent.

in 2014, the government decides to reclassify how we go about sex work and created a new framework to adopt an 'exploitation framework' (that sex work is inherently exploited of the one who engages in sex). created a victim centered analysis of sex work, regardless of an individuals choices, they are an exploited victim.

also they criminalize the purchasers of sex "nordic model" - everytime a sale of sex takes place, an offence takes place, which makes 5 years sentence per offence as well as purchasing it from someone under 18 is an aggravated offence.

but made new ancillitory offences - they are not allowed to advertise sex in the public in the goal to reduce demand. Bedford herself said the new legislation was worse than the old legislation - this bill is illegitimate form of social control as the state is imposing this exploitative framework onto them and made it look like women had no autonomy and that the criminalization of the buyer increased to avoid being caught - legal bureaucratic / rational legal weber

marx lense on bedford 2013

this form of work does not fall under a capitalistic model. marx would say that it is okay