This is a brief survey I did as an orientation to the subject for a project I am working on.
The “Crime Control” and “Due Process” models of criminal justice were first articulated by the American scholar Herbert Packer, in an article entitled “Two Models of the Criminal Process.”[1] Packer did not declare one model “bad” and the other “good.” Instead, he offered a method of evaluating criminal justice systems which he thought required “minute adjustments between the competing demands of two value systems…”[2]
Despite their polarities, the two models share some common ground. They both share the twin concepts of substantive and procedural law. Both models also contain a sense that government and police powers must be held responsible in some manner and degree. Additionally, the notions of ‘fair trial’ rights and connected ideals are shared by both models. Though proponents lean towards one model or the other, no one could seriously suggest employing only or the other—the result would be ludicrous.
Packer’s models have become a way of addressing and critiquing criminal justice systems, and at least a starting point for discussion. These models have not been without criticism, however. For example, Sanders and Young describe what they see as limitations of the models and have offered an alternative, albeit derived from Packer’s models.[3] Ashworth and Redmayne have also put forth a competing model, based on a human rights framework, though still containing some of Packer’s concepts.[4]
The Crime Control Model
The primary focus of the Crime Control model is on keeping society safe from criminal conduct. The approach seeks comprehensiveness and efficiency, thereby demanding broad powers of investigation, prosecution, and conviction. The goal is to quickly identify the guilty and screen out the innocent at the lower levels of the system, rather than relying on process rights and judicial proceedings to provide a sorting out.[5] The system (as described by Packer) has little use for any ‘presumption of innocence’ doctrine, because this slows down the efficiency of the system. A presumption of guilt comes into play while the person is still a “suspect.”[6] Packer takes care to caution that the two concepts of presumption are not polar opposites. The doctrine of presumption of innocence concerns process, not outcome: it seeks to ensure that no one is declared guilty until a legally competent authority does so through a fair process. However, the presumption of guilt doctrine is about outcome: a summary process is speedier and more efficient way to reach the goal of conviction. “[T]he presumption of guilt is descriptive and factual; the presumption of innocence is normative and legal.”[7] Packer likens the Crime Control model to an assembly line.[8]
The Due Process Model
Packer likens the Due Process model to an obstacle course.[9] The individual is emphasized over the community in this approach, and the model seeks to limit officials in order to prevent arbitrary use of power and abuse. This focus derives from the view that the officials have great latitude of power and therefore there must be formal controls on that power. The purpose of this model is to place checks at successive levels of the process in order to halt it when any error, abuse, or flaws are detected. It is not opposed to crime control. Rather, it turns the fact-finding process onto the criminal system itself in real time. The “possibilities of human error being what they are, further scrutiny is necessary, or at least must be available, in case facts have been overlooked or suppressed in the heat of battle.”[10]
The Tension Between the Two Models
What distinguished these two models (at least at the macro level) is their focus: one on individuals, the other on society. A balance between the two is necessary in order to achieve public safety and still adhere to the rule of law. Yet the conflict between the two systems ensues because their focus and practical goals are. To put it simply, one seeks efficient convictions in order to protect the public; the other seeks to protect individuals from arbitrary acts of the State.
The very nature of government agencies leads to a desire for public approval (which can often be more about perception than reality). That desire for approval is often sought by promoting and legislating crime control tactics. This is not always the way to gain public approval (as discussed below), but it is arguably the easier way. Elected politicians wish to tell their constituents “I will keep you safe from crime,” and therefore tend to focus more on crime control than due process. Few politicians feel confortable running on a platform of “fairness to the accused.”
Yet the public plays both sides of this game. They hold police and politicians accountable when crime increases (or when they perceive an increase), yet become mercilessly critical of those same leaders when miscarriages of justice occur.
Miscarriages of Justice and Responses
When the famous miscarriages of justice in the 1970s came to light in the 1980s (the Birmingham Six, the Guildford Four, and the Maguire Seven), it led to serious examinations of a system heavily weighted towards crime control. Those three cases shared a number of critical problems in common: oppressive conduct by the police, non-disclosure by prosecution, non-disclosure by forensic experts, and concocted evidence. Previous to these cases, there had been some legislative attempts to provide effective due process controls. For example, the Criminal Appeals Act 1968 allowed sharing of evidence by the prosecution if it was ‘in the interests of justice.’ The Act also addressed the possibility of allowed fresh evidence on appeal. The Police and Criminal Evidence Act 1984 was promises as a way to provide protections against police misconduct and protections of due process rights. When the three miscarriages above came to light in between 1990 and 1992, apologists noted that these cases were before PACE was enacted. Yet, a similar miscarriage took place in 1986 in one of the very areas PACE was being field-tested (the Tottenham Three) and another famous miscarriage happened five years later (the Cardiff Three). The government responded to the first three cases with a Royal Commission on Criminal Justice and the Runciman Commission (which reported in 1993) and changes were promised. Yet more questions were raised by subsequent studies showing continued misconduct, some level of institutional racism, and by the Stephen Lawrence tragedy in 1997. This led to the 1999 MacPherson Report. An observer could not be criticized for wondering if the government is excellent at commissions and reports, but deficient in solving the problems.
An examination of PACE through the Philips Commission recommendations and the code itself might lead one to believe that PACE’s objectives derived from a due process model. Yet studies have show that, in practice, it has had little effect in many areas. Sanders and Young have argued that the police still rely on a “cop culture” approach derived from a crime control model when addressing the issues of stop and search.[11] As for consensual search rules, a 1991 study demonstrated that police often engaged in tactics to trick suspects into consenting, circumventing the purpose of the provision.[12] Studies have also shown that discrimination based on race, gender, and economic level takes place with troubling consistency.[13] Choongh explains this in part by a “social disciplinary system” where officials believe it is efficient and acceptable to divide society into categories, one of which is the “criminal class” and therefore always suspect.[14] This again demonstrates the problems that arise from a model that focuses on society as a whole while lacking a system of checks that focus on the individual. Unfortunately, the most at-risk in society are the ones often categorized in the criminal class: the poor, lower class working people, ethnic minorities, the homeless, and the mentally ill.
Recent Studies
Gilling recently wrote an article examining these models from a “governmentality” perspective. He notes that “public confidence” has become a great concern for the government,”[15] which he argues creates problems for the due process model. New Labour’s 1998 Comprehensive Spending Review contained five objectives concerning the criminal justice system that appeared to prioritize procedural justice derived from a focus on the rule of law. While this seemed promising, four years later the review collapsed into the single, ambiguous goal of “building a safe, just society.” In the 2004 review the goal became a bit more hopeful but similarly ambiguous: “to reassure the public…without compromising fairness.”[16] By 2007, along with the formation of the new Ministry of Justice, the stated goal was merely “working together through protecting the public.” This slogan portrays a model oriented towards the crime control model. Gilling stresses that underpinning all of the language contained in the latest Review is the goal to make the public “feel” confident that the State is keeping them safe. In the end, it is more about communication than it is crime control or due process—probably a result of the need politicians feel to be seen serving the public, even if, in actual practice, they are not. Gilling concludes that the desire for “public confidence” as a primary goal led New Labour to “steer governmental authorities down the crime control path…”[17] Interestingly, Gilling cites recent research that shows public confidence may have more to do with a perception of procedural fairness and community cohesion than it does in a crime control model.[18] Similarly, studies of non-police and private security agencies have shown that compliance methods are more effective and produce a greater sense of security and fairness than do sanctioning methods.[19] Recent research of European spending on crime control demonstrates that public confidence in the police decreases the more money is spent on crime control.[20]
Conclusion
There is an inherent contradiction in a system that leans too far towards a crime control model. This contradiction lies in the fact that a criminal justice system which sweeps the innocent (or abused of process) along with the guilty is violating the very society it purports to protect.. Instead of “criminals” being the danger, citizens are in danger from a State that acts with arbitrary power. A system of procedural checks and sanctions is vital to keep the system in proper balance. It requires constant monitoring and adjustment. The courts play a crucial role, through the separation of powers doctrine, to assure the safety of the citizens by keeping the criminal justice system from becoming the disease it purports to cure. Packer describes the balance in the following manner.
Because the Crime Control Model is basically an affirmative model, emphasizing at every turn the existence and exercise of official power, its validating authority is ultimately legislative (although proximately administrative). Because the Due Process Model is basically a negative model, asserting limits on the nature of official power and on the modes of its exercise, its validating authority is judicial and requires an appeal to supralegislative law, to the law of the Constitution.[21]
Following the precepts of the rule of law and the function of the separation of powers is essential to balancing and managing the tensions between crime control and due process.
Bibliography
Ashworth, A, and M Redmayne. The Criminal Process. Third Edition. Oxford: Oxford University Press.
Choongh, S. “Policing the Dross: A Social Disciplinary Model of Policing,” British Journal of Criminology 38 (1996) 623–634.
Cownie, F., A. Bradney, and M. Burton. English Legal System in Context. Fourth Edition. Oxford: Oxford University Press, 2007.
Gilling, Daniel. “Crime control and due process in confidence-building strategies: a governmentality perspective.” British Journal of Criminology 50 (2010): 1136–1154.
Jackson, J. and J. Sunshine. “Public Confidence in Policing: A Neo-Durkheimian Perspective.” British Journal of Criminology 47 (2007): 214-33.
Kaariainen, J. “Trust in the Police in 16 European Countries,” European Journal of Criminology (2007) 4: 409-35.
McConville, A. Sanders, and R. Leng, The Case for the Prosecution. London: Routledge, 1991.
Packer, Herbert L. “The Limits of Criminal Sanction.” University of Pennsylvania Law Review 113 (1964): 1–68.
________. The Limits of the Criminal Sanction. Stanford: Stanford University Press, 1968.
Reiner, R. The Politics of the Police. Oxford: Oxford University Press, 2000.
Sanders, A., and r. Young. Criminal Justice. Oxford: Oxford University Press, 2006.
Sparks, R. “Reason and Unreason in ‘Left Realism’: Some Problems in the Constitution of the Fear of Crime.” In R. Matthews and J. Young, editors. Issues in Realist Criminology. London: Sage, 1992.
Endnotes
[1] Packer (1964); see also the more developed version in Packer (1968) which this essay uses as a source.
[2] Packer, 153.
[3] See Sanders and Young (2006), chapter 1.
[4] Ashworth and Redmayne (2005), chapter 2.
[5] Cownie, et al., 237.
[6] Packer, 160.
[7] Packer, 160.
[8] Packer, 159.
[9] Packer, 163.
[10] Packer, 164.
[11] Sanders and Young (2006), 110.
[12] McConville, et. Al (1991), 94.
[13] See, for example, R. Reiner, The Politics of the Police (Oxford: Oxford University Press, 2000).
[14] Choongh, 627.
[15] Gilling, 1136.
[16] Gilling, 1140–1141.
[17] Gilling, 1148.
[18] See, for example, J. Jackson and J. Sunshine, “Public Confidence in Policing: A Neo-Durkheimian Perspective,” British Journal of Criminology (2007) 47: 214-33; R. Sparks, “Reason and Unreason in ‘Left Realism’: Some Problems in the Constitution of the Fear of Crime’, in R. Matthews and J. Young, eds, Issues in Realist Criminology. London: Sage, 1992.
[19] See Cownie, et al., 219.
[20] Gilling, 1151; see J. Kaariainen, “Trust in the Police in 16 European Countries,” European Journal of Criminology (2007) 4: 409-35.
[21] Packer, 173.