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CHAPTEFI

Law and Social Control

Gince the beginning of the discipline of sociologv in the nineleenth cenlury. a great 9deal has been written on various facets of social control, and the topic continues lo occupy a central position in the sociological and law and society literature (see. for example, Hil and Tait, 2004; Norris and Wilson.2OOT:Vold et al.. 2009). Social control refers to the methods used by members of a society to maintain order and to promote predictability of behavior. There are many different forms of social control. and law is only one of them. The emphasis in this chapter is on social control through laws that are activated when other forms of control mechanisms are ineffective or unavailable. This chapter examines the processes of informal and formal social control. the use of criminal sanctions. the effectiveness of the death penalty, and civil commitment to regulate behav- ior. Part of this chapter is concerned with.crimes without victims (drug addiction, prosti- turion. and gambling). white-collar crime. and the control of dissent. The chapter concludes with a consideration of administrative law as an instrument of control in the context of licensing, inspection. and the threat of publicity.

There are two basic processes of social control-the internalization of group norms and control through external pressures (Clinard and Meier,2O1,O).In the first instance, social control is the consequence of socializalion. lhe process of learning the rules of be- havior for a given social group. Individuals develop self-control by being taught early what is appropriate, expected, or desirable in specific situations People acquire a motivation to conform to the norms. regardless of external pressures. Most students do not cheat because o{ the fear of being caught, and most people pay their taxes. most of the time. There is conformity lo norms because individuals have been socialized to believe that they should conform, regardless of and independent of an!' anticipated reactions of r>ther persons

Mechanisms of social control through external pressures include both negative and positive sanctions. Negative sanctions are penalties imposed on those who violate norms. Positive sanctions, such as a promotion, a bonus. and encouragement. are intended to reward

conformity. These positive and negative sanctions are forms of social conffol. Some types of social cont1ol are formal or official, and others are informal or unofficial in character.T!pi- cal reactions to deviance and rule breaking may generate both informal and formal sanc- tions. Although there is a considerable amount of overlapping between informal and formal mechanisms of social control. for analytical purposes tbey will be discussed separately.

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INFORMAL SOCIAL CONTROLS

Methnds of informal social controls are best exemplilied by folkways (established norms of common pra€tic€s such as those that specify modes of dresgetiquette.and language use) and

mores (societal nonns associated with intense feelings of right or wrong and definite rules of conduct that are simply not to be violated-for example. incest). These informal controls consist of techniques whereby individuals who know each other on a personal basis accord praise to those who comply rvith their expectations and show displeasure to those who do not (Shibutam,796L06\.These techniques may be observed in expressions of opinion and specific behayiors, such as ridicule, gossip. praise, reprimands criticisms, ostracism, and ver- bal rationalizations. Gossip. or lhe fear of gossip, is one of the more effective devices em- ployed by members of a society to bring individuals into conformity with norms. Unlike formal social controls. these informal controls are not exercised through official group mech- anismq and there are no specially designated persons in charge of enforcement.

Informal mechanisms of social control tend to be more effective in groups and soci- eties where relations are face to face and intimate and where the division of labor is rela- tivety simple- For example, Emile Durkheim argues that in simple societies, such as tribal villages or small towns. legal norms more closely accord with sr:cial norms than in larger and more complex societies. Moral disapproval of deviance is nearly unanimous in such communities (Shilling and Mellor. 199S); and as Daniel Glaser {1.971:32) notes. "Toler- ance of behavioral diversity varies directly with the division of labor in a society." In simple societies, laws are often unwritten. necessitating the direct teaching of social norms to children. Socialization in such simple societies does not present children with contradictory nonns that creale confusion or inner conflict. Intense face-lo-face interac- tion in such societies produces a moral consensus that is well known to all members; it also brings deviant acts to everyone's attention quickly.

There is substantial evidence in the sociological literature to support the con- tention that informal social control is stronger in smaller. traditional, more homogeneous communities than in larger, more modern, heterogen€ous communities (Hanawalt. 1998). In a classic and influential study of deviance in the seventeenth-century Massa- chusetts Bay Colony. Kai T. Erikson found that the small size and the cultural homogene- ity of the community helped conlrol behavior, because everyone in the community pressured potential deviants to conform to dominant nofms. There was a substantial amount of surveillance by neighbors in the community watching for acts of deviance. Moral censure immediately followed any observed act of deviance (Erikson. 1966:169-170). Even toda!,, reaction to certain crimes (for example. rape or murder) in a small, homogeneous, and close-knit community may be so intense and immediate that justice for a defendant in a criminal case may be difficult, because public pressure on the legal system to exact harsh and immediate punishment may make the provision of due process rights doubtful. In such instances, it may be necessary to change lhe location of the trial to minimize public pressure. Such a change of venue order is more likely to take place in small communities than in larger ones where the court would not assume that the defendant cannot receive a fair trial because of prejudice (Friendly and Goldfarb. 1967:96-101 ; see also Brooks. 2009).

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Undoubtedly, informal social controls operate more effectively in smaller commu- nities where people know each other and regularly interact. In such communities. law en- forcement agents can probably expect better cooperation.As a perceptive and itnovative Presi{ent's Cominission on Lax Enforcement and Administration of Justice (1967a:6) points out:'H. man who lives in the country or in a small town is likely to be conspicuous, under surveillance by his community so to speak, and therefore under its control. A city man is often almost invisible. socially isolated from his neighborhood and therefore incapable of being contrr>lled by it. He has more opportunities for crime-"

The greater effectiveness of informal social-control mechanisms in small communi- ties is demonstrated by Sarah L. Boggs's well-known study of formal and informal social controls in central cities, suburbs, and small towns in Missouri. Boggs found that residents of large cities were more apt than suburban or small-town residents to feel that crime was Iikely to occur in their community. City residents were also more likely to think that their neighbors woukl not report a burglary that they observed. and more urban residents knew of a crime or a suspicious incident in their community within the previous Year. Most people in all areas felt that their own neighborhood was safe. but fewer felt that way in the cities. When they were asked what it was that made their neighborhood safe, 83 percent of those in rural areas and small towns said that it was informal controls; 70 percent in suburbs and 68 percert of those in the cities attributed safely to informal controls, When they said that their neighhorhood was kept safe b-v informal social con- trols. the people meant that they felt secure because of the character of the community and its residents-"good, decent.law-abiding. middle-class citizens" (Boggs. l97l:323). Safety in a neighborhood was also atributed to the social network in the commudty that might lead to bystander inten'ention in a crime. Respondents who lived in suburbs and Iarge cities were more likely than those who lived in rural areas and small towns to attribute safely to such formal control agents as the police (Boggs, I97l:234). Boggs concluded that people in cities were most inclined to expect crime but least likely to feel that they could rely on their neighbors rather than the police to protect their community. As a result, they were more likely to take precautions, such as purchasing weapons or a watchdog. than their counterparts who lived in suburbs, small lowns, and rural areas.

Similar conclusions about the role of informal social-control mechanisms can be ,drawn from studies dealing with developing nations. For example, in comparing a low- crime-rate community and a high-crime-rate community in Kampala, Uganda. Marshall B. Clinard and Daniel J. Abbott found that the areas xith less crime showed greater so- cial solidarity, more social interaction among neighbors. more participation in local orga- nizations,less geographical mobility and more stability in family relationships.There was also greater cultural homogeneit.v and more emphasis on tribal and kinship ties in the low-crime community. helping to counteract the anonymity of recent migrants to the city. The stronger primary group ties among residents of the low-crime area made it more dif- ficult for strangers in the community to escape public notice. To prevent theft, residents of an area must feel that it is wrong, share some responsibility for protecting their neigh- bors' property, be abls to identify strangers in the area, and be willing to take action if they observe a theft (Clinard and Abbott.1973:149).

These and other studies (see, for example, Garofalo and Mcleod. 1989) show that if there is intense social interaction on an intimate face-to-face basis, the normative

CHAPTEB 5 Law and Social Control 197 I

consensus. and the surveillance of the behavior of members of the community. informal social control will be strong to the extent that legal or formal controls may be unneces- sary. This contention is reinforced by Roberto Mangabeira Unger's (1976) argument. which was discrissed in Chapter 2. To reiterate, Unger contends thal bureaucratic law emerges when state and socilty become differentiated and there is a felt need for an in- stitution standing above conflicting groups. This occurs when the community disinte- grates. that is, when individuals may no longer be counted on to act in set wa!'s without overt guidance. Such disintegration comes about as the division of labor creales new op- portunities {or power and wealth, which. in turn, undercut old hierarchies determined by birth.This process is accompanied by an increased reliance on formal social controls.

Finally, the role of neighborhood committees (for example,little old ladies employed by the state to monitor their neighbors). such as those found in China. should be consid- ered. The Chinese call them "KGB with little feet" (Ignatius. 1989). The "old lady" net- work, established in the 1950s as a bridge between the party and the people, still remains China's rnost effective means of grassroots social control (Diamant et aI.,2005). In the mid-2000s. there were an estimated one million neighborhood committees in cities and vil- lages around the country, employing 6.4 million retirees, virtually all women. In Beijing. there is. on the average. one old lady- keeping watch on every 20 families. Their primary task is to seek out and resolve squabbles among neighbors. They report ever!,thing lhey see to higher-ups, investigate disturbancet routinely stop strangers, and pry into couples' plans for having children. [n the summer of 1989, they were active in circulating photos of fugitive prodemocracy activists and helped to mobilize residents to attend mass rallies and public executions This technique of community-based surveillance is modeled after the one introduced in the former Soviet Union in the 1920s, which was based on the principle of denouncement. People yrere encouraged, and rewarded. to report on friends and rela- tives who were suspected of engaging in activities contrary to the interests of the govern-

ment. Various versions of this technique were subsequently used in Nazi Germany and other totalitarian regimes. Some of them are being revitalized in the post 9/11 war otr ter- ror endeavors by the police backing antiterrorism community watch programs lo educate the public about behaviors that are truly suspicious and should be reported to the police. An example of this would be the Los Angeles iWATCH program designed to provide the public with concrete advice on how to follow the oft-repeated post-9/l1 recommendation: "If you see something, say something" (Sullivan,2009).

FORMAL SOCIAL CONTROLS

Although there is no clear-cut dividing line. formal social controls are usually character- istic of more complex societies with a greater division of labor. heterogeneity of popula- tion, and subgroups with competing values and different sets of mores and ideologies. Formal controls arise when informal conlrols alone are insufficient to maintain conform- ity to certain norms. Formal controls are characterked by systems of specialized agencies. standard techniques, and the general predictability of universal sanctions. The two main types are those instituted tr-v the state and authorized to use force and those imposed by agencies other than the state, such as the church. business and labor grouPs, universitieq and clubs.

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inmates in state and federal prisons are serving life sentences. an increase of 83 percent from 1992. The jump in the number of inmates serving life sentences imposes large costs on states. about $1 million for each inmate who serves out his full sentence behind bars. The number of federal and stale prisons grew from 592 in 1974 to over 1.200 in 2005. In 1923, the United States had 6l prisons Spending on jails and prisons rose to $57 billion in 2005, the larest year for which data are available, from $9.6 billion in 1982. Spending on police protection and the courts also greu', though more slowly. with money for the po- lice reaching $82 billion in 2005 and spending or the courts reaching $Sg Uillion. Court spending includes lhe cosls ofjudges.prosecutors,clerks. and public defenders. In total, the criminal justice system accounted for 7 percent of all state and local government spending in 2005. roughly equal to the amount spent on health and hospitals, the report found. The criminal justice system employed 2.3 million people in 2001. 747 ,NA of them as jail or prison guarrls (Butterfield.200ul: U.S. Department of Justice.2007).

America not only has more people in prison than anywhere else. but also has a higher incarceration rate. This country imprisons people at fourteen times the rate of Japan, eight times the rate of France, and six times the rate of Canada. (The American prison system disgorges 600.000 angry, unskilled people each year- more than the city populations of Boston, Milwaukee, or Washington. In 2004, some 13 milliou people have been convicted of a felony and spent some time locked up [Butterfield, 2004]. That's al- most 7 percent of the adult residents of the United States,larger than the population of many countries, including Sweden, Bolivia, Senegal. Greece, Hungary, or Somalia.)

To put this in some kind of perspective, there are some 8 million students enrolled full-time in four-year colleges and universities nationwide, and if current trends continue, the number of Americans behind bars and on probation will very soon match. and lhen possibly exceed, this number. While comparing prisons and higher education. it is worth noting that states collectively spend more to construct prisons than universities, and they spend $57 billion a year, well over $20,000 per prisoner, on keeping offenders behind bars. In this context, America's schools are losing the budget battle to prisons by a factor of more than two to one.

The laws enacted by legislators and modified bv court decisions define criminal and delinquent behavior and specify the sanctions imposed for violations (see, for example, Beckett and Sasson.2004: Husak,2010). Over time. there has been an increasing reliance on law to regulate the activities and, thus. the lives of people. As the law has proliferated to incorporate more types of behavior, man.v changes in penalties for certain crimes have also occurred. These increases inevitably result in more social control and in further changes in the control methods. As more behaviors are defined as criminal, more acts become the interest of the police, the courts. and the prison system.

The term legalization is used to describe the process by which norms are moved {rom the social lo the legal level. Not all social nonns become laws; in fact, onlv certain norms are translated into legal norms. Why is it that the violation of certain norms, but not others. is chosen to be incorporated into the criminal code? Austin T. Turk (1972) sug- gests that there are certain social forces involved in the legalization and creation of legal norms: moral indiggration. a high value on order, response to threat, and political tactics.

As discussed in Chapter 4, laws may be created by the actions of "moral entrepre- neurs" who become outraged over some practice they regard as reprehensible; for

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Formal social controls are incorporated in the institutions in society and are charac- terized by the explicit establishment of procedures and the delegation of specific bodies to enforce them (laws, decrees, regulations, and codes). Because they are incorporated in the institutions of society, they are administered by individuals who occupy positions in lhose institutions. Generally. anyone who attempts lo manipulate the behavior of others through the use of formal sanctions may be considered an agent of social control (Clinard and Meier. 2010).

Social institutions are organized for securing conformity to established modes of be- havior and consist of established procedures for satisfying human needs These procedures carry a certain degree of compulsion and involve mechanisms of imposing conformity. Nonpolitical institutions may resort to a variety of penalties and rewatds to ensure com- pliance (Vaughan,1998). For example, an organizatian may fire an employee;a church may withhold religious services at a wedding or a burial, or ever excommunicate a mem- ber; and a league owner may fine or suspend a professional athlete for infractions of rules. These same organizations may also use formal rewards to ensure conformity. To illustrate, through bonuses and promotion, an organization often rewards those who make an out- standing contribution. Dedicated church members may be commended for exemplary service. and professional athletes are often etrticed by financial rewards

It should be noted at the outset that control through law is seldom exercised by the use of positive sanclions or rewards. A person who, throughout his or her life, obeys the law and meets its requirements seldom receives rewards or commendations. State con- trol is exercised primarily, but not exclusively, through the use or threat of punishment to regulate the behavior of citizens.The next two sections focus on the use of criminal sanc- tions. with particular emphasis on the death penalty debate and civil commitment to control certain types of behavior.

Criminal Sanctions The social control of criminal and delinquent behavior exemplifies the most highly struc- tured formal system (the criminal justice system) used by sociely (see, for example, Bosworlh.2010; Clinard and Meier,2010: Husak.2010; McBarnet,20M; Simon,2009). In 2010, the number of Americans under the control of the criminal justice system exceeded 6.7 million,3.3 percent of adults in the United States, including some 2.2 million inmates in federal and state prisons and local jails-three times as many as in 1980-and another 4.5 million conyicted criminals on probalion and parole (Butterfield.2fr)4: Clinard and Meier,2010; Currie. 1998; McDonald, 2O06; New York Times, 2OO7a; U.S. Department of Justice. 2A07,2AOg). One person in 142 is behind bars, up from one in 218 a decade ago, with some 4.5 million on probation (Hallinan.2001). Federal prisons are operating at more than 130 percent of capacity. and two dozen state prison systems are operating at 100 percent capacity or higher (McDonald.20O6; U.S- Department of Justice, 2009). More and more" state and federal goyernments are turning to priYate prison operators such as Corrections Corporation of America to cope with overcrowding. In the United States, around 7 percent of the inmates are held in private facilities, as compared to l7 percent inAustralia and 10 percent in Britain (Ecctnomist,2007a).

Some counties in the Uniled States now have more than 30 percent of their resi- dents behind bars (U.S. Department of Juslice,7OO7.20Og). Almost l0 percent of all

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example. smoking marijuana. Others prefer order and insist on provisions to regulate life and to make sosiety as orderly as possible.They promulgate laws to ensure order and uni- formity, as in the case of traffic regulation. Some people teact to real or imaginary threats and advocate leghl-control measures. For instaoce, some people may assume that the avail- ability of pornographic material not only is morally wrong but also directly contributes to the increase of sex crimes (although rape and child molestation undoubtedly predate erotic books and pornographic magazines and videocassettes). In this instance, it would appear certain that these people would attempt to legally prohibit the sale of porno- graphic material (Irving 1992). The final source of legalization of norms is political. where criminal Iaws are created in the interest of powerful groups in society. This source is iden- tified with the conflict perspective that I haye considered in the preceding chapters.

The process of legalization of social norms also entails the incorporation of specific punishments for specific kinds of criminal law violators. Rusche and Kirchheimer (2003:5) nole, "Eyery system of production tends to discover punishments which corre- spond to its productive relationships." Michel Foucault (1977\ tells us that before the in- dustrial revolution, life was considered cheap and individuals had neither the utility nor the commercial value that is conferred on them in an industrial economy. Under those circumstances, punishment was severe and often unrelated to the nature of the crime (for example, death for stealing a chicken). When more and more factories appeared, the value of individual lives, even criminal ones. began to be stressed. Beginning in the last years of the eighteenth century and the early years of the nineteenth century. efforts were made to connect the nature of a given punishment to the nature of the crime-

Fitting the punishment to the crime is a difficult and at times controversial and po- lilicallV sensitive task (see, for example, Brooks,20l0; Brudner,2009l Cusac,2(X)9:Tonry, 2010). The definition of crime and the penalty for it and the componenls of the culture of control (Cusac.2009: Garland.2001) vary over time and from one society to another. For example. in rural areas in People's Republic of China. it is not uncommon to burn down the houses or to confiscate the property of those who violate birth control laws. In the words of a villager, "If you have more than one child, they rvill come and rip the engine out of your boat or destroy your house on the land" (Tyler, 1995:6). By contrast. in a democracy, the power to define crime and punishment rests with the citizenr,v.This power is largely delegated to elected representatives.Their statutes are often broad and subject to various interpretations. As Chapter 3 demonstrated, legislative enactments allow judges, prosecutors, and juries considerable flexibility and discretion in assessing guilt and imposing punishment.

But what does it mean to punish an individual who violates a criminal law? Edwin H. Sutherland and Donald R. Cressey (L914:298) provide the following definition of the in- gredients of punishment as a form of social control: "Two essential ideas are contained in the concept of punishrnent as an instrument of public justice. (a) It is inflicted by the group in its corporate capacity upon one who is regarded as a member of the same group. . . . (b) Punishment involves pain or suffering produced by design and justified by some value that the suffering is assumed to have."

Punishment of larvbreakers has several purposes. Paut W. Tappan (1960:24L'Z6l) offers the now-established objectives of punishment. He suggests that punishment is de- signed to achieve the goal of retribution or sociul retaliation against lhe offender (see also

CHAPTER 5 Law and Social Control 2A1s

Zaibert,2006). This means punishment of the offender for the crime that has been com- mitted and. to an extent, punishment that (in principle) matches the impact of the crime upon its victim (for instance, a person or an organization). The state is expected to be the agent of vengeanbe on behalf of the victim- Punishment also involves incapocilation (fot example. a prison term). which prevents a violator from misbehaving during the time he or she is being punished. Increasingly, judicially created public humiliations are also be- ing introduced in courtrooms as alternatives to incarceration and to satisfY a "retributive impulse" (Karp, 1998:277)- They are considered as "shaming penalties" - after punish- ments like the stocks lavored by seventeenth-centur-v Puritans-and they take a mea culpa message to the community. For example, lhe names of men who solicit prostitutes are identified in local papers or radio shows: Kansas City, Missouri, in late 1990s started the now popular "John TY" in which the names. mug shots, birth dates, and hometowns r:f men arresled for trying to buy sex. and women arrested trying to sell it, are broadcast on the municipal cable channel: drunken drivers carry signs on their cars announcing their pfoblem and urging other drivers lo report their erratic driving to the police; con- victed shoplifters must take out advertisements in local papers running their photographs and stating their crimes; and the courts ordered people convicted of assault or child mo- Iestation to put signs in their yards announcing their transgression (Belluck, 1998; Econo- mist,}O}fiaiHoffman. 1.997\- In Peoria, Illinois. police park an unmanned former Brink's truck. nicknamed'Armadillo," bristling with video cameras in front of the homes of drug dealers and other offenders (Porter, 2009). Shaming and embarrassment are potent forces in social control, and various techniques are being more and more widely used nowadays and they are a good way to express communal values (Allyn,2004).

Furthermore. punishment is supposed to have a deterrent effect, both on the law- breaker and on potential deviants. lndividwal or specific delerrence may be achieved by intimidation of the person, frightening him or her against further deviance, or it may be affected through reformation, in that the lawbreaker changes his or her deviant behavior. General deterrence results from the warning offered to potential criminals by the example of punishment directed at a specific wrongdoer. It aims to discourage others from crimi- nal behavior b,v making an example of the offender being punished.

The theory of deterrence is predicated on the assumption that individuals weigh the costs and rewards associated with alternative actions. and select behaviors that maximize gains and minimize cost.Thus. crime takes place when law breaking is perceived as either more profitable (rewarding) or less coslly (painful) than conventional actiYities. In this conlext, the purpose of punishment is to prevent crime (Bailey and Peterson, 1994). The concept of deterrence is often used to designate punishment in the form of threats di' rected at offenders or potential offenders so as to frighten them into law-abiding conduct. The effectiveness of these threats is conditioned by the operation of three variables: (1) the severity of the punishment for an offense (2) the certainty that it would be ap- plied. and (3) the speed with whicb it would be applied (Friedland, 1989). Research gen- erally supports the view that certainty of punishment is more important than severity for achieving deterrence. but there is little research data as yet on the swiftness of punish- ment. For example. in a study of a series of criminal offenses, Charles R. Tittle (1969) found strong and consistent negative relationships between certainty of punishment and crime rates for different states, as measured by the ratio between felony admissions to

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state prisons and the total crimes known to the police in different states.Those states with the lowest crime rates had a proportionately larger number of incarcerated persons. On the other hand, severity of punishment bore no marked relationship to crime rates. Tittle's findings led him to conclude thal measures to improve the efficiency of police work probably would have significant effects on crime rates but that increasing the sever- ity of punishment would be of limited effectiveness.

However. sociologists have long recognized that punishment may deter only some crimes and some offenderr For example.William J. Chambliss (1975) makes a distinction between crimes that are instrumental acts and those that are expressive.Instntmental ot' fenses include burglary, tax evasion, embezzlement (American businesses lose $660 bil- lion each year to emhezzling [Ortiz.2006l), motor vehicle theft (note ihat 15 percent of all auto thefts reported are fraudulent and made by the owner to collect on his or her in- surance [Cook, 1989:68]). identity theft (Finch and Fafinski.2010) that became very pop- ular in the early part of lhe twenty-first cenlury (annually in late 2000, for example, an estimated 3.6 million U.S. households*or about three out of every 1000-reported being victims of identity theft, including Ben Bernanke, chairman of the Federal Reserve Board

[Hilsenrath and Kendall.2009], resulting in a loss of $3.2 billion [Jelinek,2006; U.S. De- partment of Justice.2006,2007J), and other illegal activities directed toward some mate- rial end. Examples of expressive acts are murder. assault, and sex offenses, where the behavior is an end in itself. Chambliss hypothesizes that lhe deterrent impact of severe and certain punishment may be greater on instrumental crimes because they generally involve some planning and weighing of risks. Expressive crimes, by contrast. are often im- pulsive and emotional acts. Perpetrators of such crimes are unlikely to be concerned with the future consequences of their actions.

Chambliss further conlends that an important distinction can be made between indi viduals who have a relatively high commitment to crime as a way of life and those with a relatively low commitment. The former would include individuals who engage in crime on a professional or regular basis.They often receive group support for their activities,and crime for them is an important aspecl of their way of life (such as prostitutes or partici- pants in organized crime). For them, the likelihood of punishment is a constant feature of their life, something they have learned to live with, and the threat of punishment may be offset by the supportive role played by their peers. On the other hand. a tax evader, an em- bezzler, or an occasional shoplifter does not view this behavior as criminal and receives little, if an-v. group support for these acts. Fear of punishment may well be a deterrent for such low-commitment persons, particularly if they have already experienced punishment (for example. a tax evader who has been audited and then subjected to legal sanctions).

On the basis of these two types of distinctions - instrumental and expressive acts, and high- and low-commitment offenders-Chambliss contends that the greatest deter- rent effect of punishment will be in situations that involve low-commitment individuals who engage in instrumental crimes. Deterrence is least likely in cases involving high- commitment persons who engage in expressive crimes. The role of deterrence remains questionable in situations that involve low-commitment individuals who commit expres- sive crimes (such as murder), which can be illustrated by the arguments used for or against the death penalty.

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Discord over the Death Penahy Throughout the world, as the most severe form of punishment. the death penalty is the most obvious, centroyersial. and emotional issue in the concept of deterrence (see for example, Bedau and Cassell ,20f,4; Christianson, 2004. 2010: Economfut. 2OO7b. 2010; Johnson and Zimring, 2009; Sarat, 2(D1;Turow, 2004;Williams. 2003: Yorke, 2009). Histor- icall;r. property offenses rather than violent crimes (Ferguson,2010) accounted for the majority of executions. In the eighteenth century. the death penalty was imposed in England for more than 200 offenses, including poaching and smuggling. Executions were performed in public. They were a popular spectacle- The public applauded a skillful exe- cution of a criminal much as aficionados today cheer the matador who skillfully slavs a bull (Foucault. 1977). The standard methods of execution were hanging. beheading. dis- emboweling, and quartering.The increased severity and frequency of executions during this period were associaled urilh the growth of urbanization and wealth. Notes Loh (19S4:194). "Capital statutes 'served the interests of private property and commerce' against those who might seek to undermine lhem." Although the colonies inherited many of the capital punishments from England. by the middle of the nineteenth century, most of the colonies repealed capital punishments, and the death sentence was imposed primarily for murder and. to a lesser exlent, rape.

In the 1972 decision Fwrman v. Georgia, capital punishment was declared unconsti- tutional try the U.S, Supreme Court. The Court held that the discretionary application of the death penalty to only a small fraction of those eligible to be executed was capricious and arbitrary and hence unconstitutional. However, a number of states since responded ro the Court ruling by legislating modifications in state laws that make the death penalty mandatory for cerlain offenses, such as multiple killings; killing in connection with a rob- bery, rape, kidnapping. or hostage situation; murder for hire: killing a police officer or prison guard; and treason. Some of these revised statutes were held to be constitutional by the Supreme Court in 1976 when it voted 7-2 in Gregg v. Georgia to reinstate the death penalty. Over the past three decades or so, as Table 5-l captures. several states passed capital punishmenl laws, and seyeral other states are considering similar statutes as well. In 2ffi6. the United States ranked sixth in the world per capita for the number executions (Economist.2007b:70j. Bv contrast.4T percent of the world's countries had abolished capital punishment in law or practice by the end of 1993 (Worsnop, 1995), and South Africa was added to lhis list in mid-1995 {U.S. Nrrrvs & World Report.1995:14). By 2007, 89 countries have abolished the death penalty for all crimes, another 10 for exceptional crimes. and an additional 30 are abolitionist in practice. having executed nobody for at least 20 years (Economist,2007b:69). For the first time in Europe's recorded history, there was not a single execution in 2009 (Economist, 2010:50) although Amnesty Inter- national trotes that 714 people $ere execuled in other countries. led by Iran, Iraq, and Saudi Arabia *here melhods of execution included beheading. stoning, electrocution, hanging, firing squads, and lethal injection (McDonald,2010). In China. however, death penalty is still widely practiced with more court-ordered executions than all other nations combined. During a fairly recent wave of death sentences, as many as 191 people were execuled in a single day.In 2005, for example. an estimated 5,000 to 10.000 have been sub- jected to the death penalty for crimes ranging from murder to such nonviolent offenses

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