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This article ‘Models of Criminal Justice System: Crime Control and Due Process’ examines the framework which Herbert Packer devised for analysing the criminal justice process.
The most successful attempt at criminal process understanding was achieved by the American legal scholar Herbert Packer. In Packer’s original thesis, the crime control model emphasizes individual responsibility and is designed to protect the rights of law-abiding citizens by stressing efficient apprehension and punishment of criminals, whereas the due process model stresses human rights and is devised to protect the rights of the accused by presenting formidable impediments to moving them past each step in the legal process.
According to Packer, the two models are opposite ends of the spectrum and represent simplifications of reality that in practice coexist to varying degrees and with different blends.
Introduction: Models of Criminal Justice System: Crime Control and Due Process
In August 1967 Professor Herbert Packer of Stanford University put aside his administrative duties as vice provost and went away to Santa Cruz to concentrate his efforts on the book he was writing. The result was the acclaimed The Limits of the Criminal Sanction,[1] winner in 1970 of the prestigious Triennial Order of the Coif book award, the highest honour that could be bestowed on an American legal scholar. While the book’s primary concern was to question the ‘far too indiscriminate’ way in which the criminal sanction was being resorted to, it is best known for Packer’s ‘two models of the criminal justice process’, the ‘crime control’ and ‘due process’ models.
Ever since Herbert Packer published ‘Two Models of the Criminal Process’[2] much thinking about criminal justice has been influenced by the construction of models. Packer’s models have been remarkably durable and still describe important facets of the practice and politics of criminal justice.
This article examines the framework which Herbert Packer devised for analysing the criminal justice process.
An Introduction to Packer’s Models
1. Crime Control Model
According to the Crime Control Model, the most important function of the criminal process is to repress criminal conduct and thereby safeguard social freedom.[3] It insists that primary attention should be paid to the efficiency with which the criminal process operates to screen suspects, determine guilt, and secure appropriate dispositions of persons convicted of a crime.
For the crime control model, the problem is the effective protection of society as a whole from the threat of a breakdown of law and order posed by unrepressed criminal activities. The model is founded upon the presumption of guilt. According to this presumption, the screening processes operated by police and prosecutors are reliable indicators of probable guilt, and so suspects found to be probably guilty by these processes should be convicted as expeditiously as possible with a minimum of occasions for a challenge.
Packer’s crime control model assumes that punishment is necessary to control crime whereas it may achieve little in the way of general deterrence and may make things worse by stigmatizing offenders and producing defiance. It proceeds with an official presumption that an individual charged with an offence is possibly guilty of it or of some other offence. This model finds a connection between the rate of convictions and domestic tranquillity and general welfare.
Suppressing crime is the penultimate goal of the criminal justice system under this model. A failure to reign in criminal conduct slowly but inevitably subverts order and leads to a broad contempt for the rule of law. And to the extent that few, respect and follow the law, all are harmed in the long run. The antidote is to ensure the utmost efficiency in law enforcement in terms of filtering suspects, ascertaining guilt, and imposing punishment. In particular, the crime control model seeks maximum informality, uniformity, and finality in the criminal process.
The police are given broad investigative powers to arrest people for questioning and this is often the quickest means to establish if the suspect is factually guilty. The only limitations on police interrogations are those designed to ensure the reliability of the suspect’s statements. Detained people are not allowed to contact a lawyer because this will slow down the process and only benefit the guilty, who will follow their lawyer’s advice not to say anything.
“A lawyer’s place is in court. He should not enter a criminal case until it is in court.”
The police should also have wide powers to conduct searches because only the factually guilty have something to hide. Illegally seized evidence should be admissible at trial. Unlike coerced confessions, guns, drugs and stolen property reveal the truth no matter how the police obtained.
It would be a mistake to dismiss the crime control model as a thuggish model that is unconcerned with police abuse. Police misconduct should be taken seriously in disciplinary, civil and even criminal proceedings. In this respect, the crime control model embraces Dicey’s idea that the rule of law is based on the ability to impose the ordinary law on state officials.[4] What crime control model rejects is allowing “the criminal … to go because the constable has blundered.”
The trial is not that important in the crime control model because it’s “centre of gravity … lies in the early, administrative finding stages.”[5] The prosecutor, as opposed to a judge at the preliminary hearing, is in the best possible position to evaluate evidence amassed by the police and decide whether it warrants holding the suspect for a determination of guilt.[6]
Prosecutors, like police, can be trusted not to waste their limited time sources on the innocent. Pre-trial detention is the rule, not to ensure the accused’s presence at trial, but to prevent future crime and to persuade the accused to plead guilty at the first opportunity.[7] Under these conditions, it is in the interest the prosecutor, the judge, the defendant to terminate without trial every case in which there is no genuine doubt about the actual guilt of the defendant.
Because of the ability of the police and prosecutors to screen out the factually innocent, judges and jurors should not be haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism the watery sentiment that obstructs, delays, and defeats the prosecution of crime. Appeals should not be encouraged and allowed if the accused establishes that “no reasonable trier of fact could have convicted on the evidence presented”.
The model is best analogized to an assembly line with “an endless stream of cases” on a conveyor belt. Each worker performs a necessary task on the case and then moves it on to the next station, that much is closer to final disposition. Such an approach requires a successful screening process coupled with a presumption of guilt.
The goal of each step in the criminal process is to separate the probably guilty from the probably innocent and pass the first group onto the next stage. Implicit is a systemic rather than a legal presumption of guilt. The model confidently assumes that the screening process does in fact cull the guilty from the innocent and that those who remain in the legal system after successive stages are true criminals.
2. Due Process Model
Packer stated that if the crime control model resembles ‘an assembly line’, the due process model resembles ‘an obstacle course’. The due process model insists that reliability is of at least as much importance as efficiency, and so “if efficiency demands short-cuts around reliability, then absolute efficiency must be rejected.”
The model regards investigative and prosecutorial fact-finding as prone to error, and so insists upon formal fact-finding processes. The due process model is also concerned with equality in the sense that all accused regardless of wealth or social status receive equal treatment by, for example, being represented lawyer. Minorities and the poor bear the brunt of police and prosecutions. It is assumed that protecting the due rights of all accused will protect the rights of the most disadvantaged.
Under due process model, the justice system seeks to develop social, legal and organizational structures, which will filter out law violators and also provide an avenue of possible freedom to those who are innocent or casual lawbreakers. The due process model lends emphasis comparing the respective claims of the accused and state with a fair trial by an impartial tribunal. Presumption of exclusion of coercion and respect to individual’s rights are the characteristics of the model. Accuracy over efficiency and state is not allowed to infringe an individual’s rights but the efficiency of the criminal process in prevention and suppression crime.
The due process model is diametrically opposed to this approach and instead reveres individual autonomy and dignity. Government overreaching must be checked at each turn because the criminal sanction can devastate or even snuff out liberty. Power is always subject to abuse, sometimes subtle, other times, as in the criminal process, open and ugly. Precisely because of its potency in subjecting the individual to the coercive power of the state, the criminal process must, on this model, be subjected to controls and safeguards that prevent it from operating with maximal efficiency. According to this ideology, maximal efficiency means maximal tyranny. Each step in the criminal justice system serves as a barrier to moving an individual to the next stage in the process. In this sense, the model is an ‘obstacle course’ rather than an assembly line.
The errors in the criminal process are multiple, the due process model argues. Mistakes are made by witnesses, police, judges, prosecutors, and all other actors in the criminal justice system. Perceptions can be skewed. Prejudice and bias can infect the process. And evidence can be manufactured or ignored. These errors and abuses are remedied only by formal adversarial hearings accompanied by robust procedural safeguards. The truth is outed by allowing the accused an unmitigated opportunity to dispute the charges against him in a public proceeding before an impartial judge. Even then, the likelihood of error demands that further review remain an option to the criminal defendant. It also rejects the presumption of guilt that attaches in the crime control model. An individual cannot be forced deeper into the criminal process based on probable guilt.
Compelling evidence of factual guilt is insufficient to deprive liberty absent diligent adherence to procedural guarantees. In this sense, the due process model acknowledges only legal rather than factual guilt. An accused may be factually guilty, but unless he has been afforded certain rights within the process, he must be deemed legally innocent. Foremost among these rights is a presumption of innocence. The individual must be presumed innocent at all stages in the criminal process, a presumption that becomes stronger as the case moves through the system.
The due process model imposes numerous restraints on police in order to protect the rights of suspects and minimize formal fact-finding in the streets and station-houses. The police should not arrest or detain a person in order to develop a case. If there is any communication between the police and accused, the accused should be carefully informed about the right to be silent and the right to contact counsel. There is no moment in the criminal process when the disparity in resources between the state and the accused is greater than at the moment arrest.
The criminal trials of the factually guilty accused must address violations of their rights because those subject to police abuse the poor, the ignorant, the illiterate, the unpopular will not be able to bring separate civil, disciplinary, or criminal actions. Because police and prosecutors are so concerned with short cuts, it is also necessary within the trial to penalize, and thus label as inefficient any violations of the accused’s rights.
In sum, the due process model is highly critical of the criminal justice system and the ends to which it is put by the government. This scepticism can only be met by limiting official discretion, affording the accused inviolate rights, and requiring that government abide by certain procedures before it can deprive liberty.
Conclusion
It is tempting to suggest that the crime control model represents our past; the due process the future. True to Packer’s original warning, however, any actual system of criminal justice is bound to reflect aspects of all of the models.
[1] Herbert Packer, the Limits of the Criminal Sanction (1968).
[2] Herbert Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1.
[3] Ibid at 153.
[4] Albert V Dicey, Introduction to the study of the law of the constitution 193 (10th ed. 1959).
[5] Ibid 2 (162).
[6] Ibid (206).
[7] Ibid (211-214).
