Custom Search

Friday, May 18, 2007

Two Models of the Criminal Process ( I I)


Reprinted and published by
from The Limits of the Criminal Sanction by Herbert L. Packer, with the permission of the publishers, Stanford University Press.  1968 by Herbert L. Packer.

In one of the most important contributions to systematic thought about the administration of criminal justice, Herbert Packer articulates the values supporting two models of the justice process. He notes the gulf existing between the "Due Process Model" of criminal administration, with its emphasis on the rights of the individual, and the "Crime Control Model," which sees the regulation of criminal conduct as the most important function of the judicial system.

Part I

Part II

Due Process Values

If the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course. Each of its successive stages is designed to present formidable impediments to carrying the accused any further along in the process. Its ideology is not the converse of that underlying the Crime Control Model. It does not rest on the idea that it is not socially desirable to repress crime, although critics of its application have been known to claim so. Its ideology is composed of a complex of ideas, some of them based on judgments about the efficacy of crime control devices, others having to do with quite different considerations. The ideology of due process is far more deeply impressed on the formal structure of the law than is the ideology of crime control; yet an accurate tracing of the strands that make it up is strangely difficult. What follows is only an attempt at an approximation.

The Due Process Model encounters its rival on the Crime Control Model's own ground in respect to the reliability of fact-finding processes. The Crime Control Model, as we have suggested, places heavy reliance on the ability of investigative and prosecutorial officers, acting in an informal setting in which their distinctive skills are given full sway, to elicit and reconstruct a tolerably accurate account of what actually took place in an alleged criminal event. The Due Process Model rejects this premise and substitutes for it a view of informal, nonadjudicative fact-finding that stresses the possibility of error. People are notoriously poor observers of disturbing events—the more emotion-arousing the context, the greater the possibility that recollection will be incorrect; confessions and admissions by persons in police custody may be induced by physical or psychological coercion so that the police end up hearing what the suspect thinks they want to hear rather than the truth; witnesses may be animated by bias or interest that no one would trouble to discover except one specially charged with protecting the interests of the accused (as the police are not). Considerations of this kind all lead to a rejection of informal fact-finding processes as definitive of factual guilt and to an insistence on formal, adjudicative, adversary fact-finding processes in which the factual case against the accused is publicly heard by an impartial tribunal and is evaluated only after the accused has had a full opportunity to discredit the case against him. Even then, the distrust of fact-fording processes that animates the Due Process Model is not dissipated. 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.

How far this subsequent scrutiny must be available is a hotly controverted issue today. In the pure Due Process Model the answer would be: at least as long as there is an allegation of factual error that has not received an adjudicative hearing in a fact-finding context. The demand for finality is thus very low in the Due Process Model.

This strand of due process ideology is not enough to sustain the model. If all that were at issue between the two models was a series of questions about the reliability of fact-finding processes, we would have but one model of the criminal process, the nature of whose constituent elements would pose questions of fact not of value. Even if the discussion is confined, for the moment, to the question of reliability, it is apparent that more is at stake than simply an evaluation of what kinds of fact-finding processes, alone or in combination, are likely to produce the most nearly reliable results. The stumbling block is this: How much reliability is compatible with efficiency? Granted that informal fact-finding will make some mistakes that can be remedied if backed up by adjudicative factfinding, the desirability of providing this backup is not affirmed or negated by factual demonstrations or predictions that the increase in reliability will be x percent or x plus n percent. It still remains to ask how much weight is to be given to the competing demands of reliability (a high degree of probability in each case that factual guilt has been accurately determined) and efficiency (expeditious handling of the large numbers of cases that the process ingests). The Crime Control Model is more optimistic about the improbability of error in a significant number of cases: but it is also, though only in part therefore, more tolerant about the amount of error that it will put up with. The Due Process Model insists on the prevention and elimination of mistakes to the extent possible; the Crime Control Model accepts the probability of mistakes up to the level at which they interfere with the goal of repressing crime, either because too many guilty people are escaping or, more subtly, because general awareness of the unreliability of the process leads to a decrease in the deterrent efficacy of the criminal law. In this view, reliability and efficiency are not polar opposites but rather complementary characteristics. The system is reliable because efficient; reliability becomes a matter of independent concern only when it becomes so attenuated as to impair efficiency. All of this the Due Process Model rejects. If efficiency demands shortcuts around reliability, then absolute efficiency must be rejected. The aim of the process is at least as much to protect the factually innocent as it is to convict the factually guilty. It is a little like quality control in industrial technology; tolerable deviation from standard varies with the importance of conformity to standard in the destined uses of the product. The Due Process Model resembles a factory that has to devote a substantial part of its input to quality control. This necessarily cuts down on quantitative output.

All of this is only the beginning of the ideological difference between the two models. The Due Process Model could disclaim any attempt to provide enhanced reliability for the fact-finding process and still produce a set of institutions and processes that would differ sharply from those demanded by the Crime Control Model. Indeed, it may not be too great an oversimplification to assert that in point of historical development the doctrinal pressures emanating from the demands of the Due Process Model have tended to evolve from an original matrix of concern for the maximization of reliability into values quite different and more far-reaching. These values can be expressed in, although not adequately described by, the concept of the primacy of the individual and the complementary concept of limitation on official power.

The combination of stigma and loss of liberty that is embodied in the end result of the criminal process is viewed as being the heaviest deprivation that government can inflict on the individual. Furthermore, the processes that culminate in these highly afflictive sanctions are seen as in themselves coercive, restricting, and demeaning. 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, in this model, be subjected to controls that prevent it from operating with maximal efficiency.

According to this ideology, maximal efficiency means maximal tyranny. And, although no one would assert that minimal efficiency means minimal tyranny, the proponents of the Due Process Model would accept with considerable equanimity a substantial diminution in the efficiency with which the criminal process operates in the interest of preventing official oppression of the individual.

The most modest-seeming but potentially far-reaching mechanism by which the Due Process Model implements these antiauthoritarian values is the doctrine of legal guilt. According to this doctrine, a person is not to be held guilty of a crime merely on a showing that in all probability, based upon reliable evidence, he did factually what he is said to have done. Instead, he is to be held guilty if and only if these factual determinations are made in procedurally regular fashion and by authorities acting within competences duly allocated to them. Furthermore, he is not to be held guilty, even though the factual determination is or might be adverse to him, if various rules designed to protect him and to safeguard the integrity of the process are not given effect: the tribunal that convicts him must have the power to deal with his kind of case (“jurisdiction”) and must be geographically appropriate (“venue”); too long a time must not have elapsed since the offense was committed (“statute of limitations”); he must not have been previously convicted or acquitted of the same or a substantially similar offense (“double jeopardy”); he must not fall within a category of persons, such as children or the insane, who are legally immune to conviction (“criminal responsibility”); and so on. None of these requirements has anything to do with the factual question of whether the person did or did not engage in the conduct that is charged as the offense against him; yet favorable answers to any of them will mean that he is legally innocent. Wherever the competence to make adequate factual determination lies, it is apparent that only a tribunal that is aware of these guilt-defeating doctrines and is willing to apply them can be viewed as competent to make determinations of legal guilt. The police and the prosecutors are ruled out by lack of competence, in the first instance, and by lack of assurance of willingness, in the second. Only an impartial tribunal can be trusted to make determinations of legal as opposed to factual guilt.

In this concept of legal guilt lies the explanation for the apparently quixotic presumption of innocence of which we spoke earlier. A man who, after police investigation, is charged with having committed a crime can hardly be said to be presumptively innocent, if what we mean is factual innocence. But if what we mean is that it has yet to be determined if any of the myriad legal doctrines that serve in one way or another the end of limiting official power through the observance of certain substantive and procedural regularities may be appropriately invoked to exculpate the accused man, it is apparent that as a matter of prediction it cannot be said with confidence that more probably than not he will be found guilty.
Beyond the question of predictability this model posits a functional reason for observing the presumption of innocence: by forcing the state to prove its case against the accused in an adjudicative context, the presumption of innocence serves to force into play all the qualifying and disabling doctrines that limit the use of the criminal sanction against the individual, thereby enhancing his opportunity to secure a favorable outcome. In this sense, the presumption of innocence may be seen to operate as a kind of self-fulfilling prophecy. By opening up a procedural situation that permits the successful assertion of defenses having nothing to do with factual guilt, it vindicates the proposition that the factually guilty may nonetheless be legally innocent and should therefore be given a chance to qualify for that kind of treatment.

The possibility of legal innocence is expanded enormously when the criminal process is viewed as the appropriate forum for correcting its own abuses. This notion may well account for a greater amount of the distance between the two models than any other. In theory the Crime Control Model can tolerate rules that forbid illegal arrests, unreasonable searches, coercive interrogations, and the like. What it cannot tolerate is the vindication of those rules in the criminal process itself through the exclusion of evidence illegally obtained or through the reversal of convictions in cases where the criminal process has breached the rules laid down for its observance. And the Due Process Model, although it may in the first instance be addressed to the maintenance of reliable fact-finding techniques, comes eventually to incorporate prophylactic and deterrent rules that result in the release of the factually guilty even in cases in which blotting out the illegality would still leave an adjudicative fact-finder convinced of the accused person's guilt. Only by penalizing errant police and prosecutors within the criminal process itself can adequate pressure be maintained, so the argument runs, to induce conformity with the Due Process Model.
Another strand in the complex of attitudes underlying the Due Process Model is the idea—itself a shorthand statement for a complex of attitudes-of equality. This notion has only recently emerged as an explicit basis for pressing the demands of the Due Process Model, but it appears to represent, at least in its potential, a most powerful norm for influencing official conduct. Stated most starkly, the ideal of equality holds that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” The factual predicate underlying this assertion is that there are gross inequalities in the financial means of criminal defendants as a class, that in an adversary system of criminal justice an effective defense is largely a function of the resources that can be mustered on behalf of the accused, and that the very large proportion of criminal defendants who are, operationally speaking, “indigent” will thus be denied an effective defense. This factual premise has been strongly reinforced by recent studies that in turn have been both a cause and an effect of an increasing emphasis upon norms for the criminal process based on the premise.

The norms derived from the premise do not take the form of an insistence upon governmental responsibility to provide literally equal opportunities for all criminal defendants to challenge the process. Rather, they take as their point of departure the notion that the criminal process, initiated as it is by the government and containing as it does the likelihood of severe deprivations at the hands of government, imposes some kind of public obligation to ensure that financial inability does not destroy the capacity of an accused to assert what may be meritorious challenges to the processes being invoked against him. At its most gross, the norm of equality would act to prevent situations in which financial inability forms an absolute barrier to the assertion of a right that is in theory generally available, as where there is a right to appeal that is, however, effectively conditional upon the filing of a trial transcript obtained at the defendant’s expense. Beyond this, it may provide the basis for a claim whenever the system theoretically makes some kind of challenge available to an accused who has the means to press it. If, for example, a defendant who is adequately represented has the opportunity to prevent the case against him from coming to the trial stage by forcing the state to its proof in a preliminary hearing, the norm of equality may be invoked to assert that the same kind of opportunity must be available to others as well. In a sense the system, as it functions for the small minority whose resources permit them to exploit all its defensive possibilities, provides a benchmark by which its functioning in all other cases is to be tested: not, perhaps, to guarantee literal identity but rather to provide a measure of whether the process as a whole is recognizably of the same general order. The demands made by a norm of this kind are likely by their very nature to be quite sweeping. Although the norm's imperatives may be initially limited to determining whether in a particular case the accused was injured or prejudiced by his relative inability to make an appropriate challenge, the norm of equality very quickly moves to another level on which the demand is that the process in general be adapted to minimize discriminations rather than that a mere series of post hoc determinations of discriminations be made or makeable.

It should be observed that the impact of the equality norm will vary greatly depending upon the point in time at which it is introduced into a model of the criminal process. If one were starting from scratch to decide how the process ought to work, the norm of equality would have nothing very important to say on such questions as, for example, whether an accused should have the effective assistance of counsel in deciding whether to enter a plea of guilty. One could decide, on quite independent considerations, that it is or is not a good thing to afford that facility to the generality of persons accused of crime. But the impact of the equality norm becomes far greater when it is brought to bear on a process whose contours have already been shaped. If our model of the criminal process affords defendants who are in a financial position to do so the right to consult a lawyer before entering a plea, then the equality norm exerts powerful pressure to provide such an opportunity to all defendants and to regard the failure to do so as a malfunctioning of the process of whose consequences the accused is entitled to be relieved. In a sense, this has been the role of the equality norm in affecting the real-world criminal process. It has made its appearance on the scene comparatively late and has therefore encountered a system in which the relative financial inability of most persons accused of crime results in treatment very different from that accorded the small minority of the financially capable. For this reason, its impact has already been substantial and may be expected to be even more so in the future.
There is a final strand of thought in the Due Process Model that is often ignored but that needs to be candidly faced if thought on the subject is not to be obscured. This is a mood of skepticism about the morality and utility of the criminal sanction, taken either as a whole or in some of its applications. The subject is a large and complicated one, comprehending as it does much of the intellectual history of our times. It is properly the subject of another essay altogether. To put the matter briefly, one cannot improve upon the statement by Professor Paul Bator:

In summary we are told that the criminal law's notion of just condemnation and punishment is a cruel hypocrisy visited by a smug society on the psychologically and economically crippled; that its premise of a morally autonomous will with at least some measure of choice whether to comply with the values expressed in a penal code is unscientific and outmoded; that its reliance on punishment as an educational and deterrent agent is misplaced, particularly in the case of the very members of society most likely to engage in criminal conduct; and that its failure to provide for individualized and humane rehabilitation of offenders is inhuman and wasteful. 1

This skepticism, which may be fairly said to be widespread among the most influential and articulate contemporary leaders of informed opinion, leads to an attitude toward the processes of the criminal law that, to quote Mr. Bator again, engenders “a peculiar receptivity toward claims of injustice which arise within the traditional structure of the system itself, fundamental disagreement and unease about the very bases of the criminal law has, inevitably, created acute pressure at least to expand and liberalize those of its processes and doctrines which serve to make more tentative its judgments or limit its power.” In short, doubts about the ends for which power is being exercised create pressure to limit the discretion with which that power is exercised.

The point need not be pressed to the extreme of doubts about or rejection of the premises upon which the criminal sanction in general rests. Unease may be stirred simply by reflection on the variety of uses to which the criminal sanction is put and by a judgment that an increasingly large proportion of those uses may represent an unwise invocation of so extreme a sanction. It would be an interesting irony if doubts about the propriety of certain uses of the criminal sanction prove to contribute to a restrictive trend in the criminal process that in the end requires a choice among uses and. finally an abandonment of some of the very uses that stirred the original doubts, but for a reason quite unrelated to those doubts.
There are two kinds of problems that need to be dealt with in any model of the criminal process. One is what the rules shall be. The other is how the rules shall be implemented. The second is at least as important as the first, as we shall see time and again in our detailed development of the models. The distinctive difference between the two models is not only in the rules of conduct that they lay down but also in the sanctions that are to be invoked when a claim is presented that the rules have been breached and, no less importantly, in the timing that is permitted or required for the invocation of those sanctions.

As I have already suggested, the Due Process Model locates at least some of the sanctions for breach of the operative rules in the criminal process itself. The relation between these two aspects of the process—the rules and the sanctions for their breach—is a purely formal one unless there is some mechanism for bringing them into play with each other. The hinge between them in the Due Process Model is the availability of legal counsel. This has a double aspect. Many of the rules that the model requires are couched in terms of the availability of counsel to do various things at various stages of the process—this is the conventionally recognized aspect; beyond it, there is a pervasive assumption that counsel is necessary in order to invoke sanctions for breach of any of the rules. The more freely available these sanctions are, the more important is the role of counsel in seeing to it that the sanctions are appropriately invoked. If the process is seen as a series of occasions for checking its own operation, the role of counsel is a much more nearly central one than is the case in a process that is seen as primarily concerned with expeditious determination of factual guilt. And if equality of operation is a governing norm, the availability of counsel is seen as requiring it for all. Of all the controverted aspects of the criminal process, the right to counsel, including the role of government in its provision, is the most dependent on what one’s model of the process looks like, and the least susceptible of resolution unless one has confronted the antinomies of the two models.

I do not mean to suggest that questions about the right to counsel disappear if one adopts a model of the process that conforms more or less closely to the Crime Control Model, but only that such questions become absolutely central if one’s model moves very far down the spectrum of possibilities toward the pure Due Process Model. The reason for this centrality is to be found in the assumption underlying both models that the process is an adversary one in which the initiative in invoking relevant rules rests primarily on the parties concerned, the state, and the accused. One could construct models that placed central responsibility on adjudicative agents such as committing magistrates and trial judges. And there are, as we shall see, marginal but nonetheless important adjustments in the role of the adjudicative agents that enter into the models with which we are concerned. For present purposes it is enough to say that these adjustments are marginal, that the animating presuppositions that underlie both models in the context of the American criminal system relegate the adjudicative agents to a relatively passive role, and therefore place central importance on the role of counsel.

One last introductory note: . . . What assumptions do we make about the sources of authority to shape the real-world operations of the criminal process? Recognizing that our models are only models, what agencies of government have the power to pick and choose between their competing demands? Once again, the limiting features of the American context come into play. Ours is not a system of legislative supremacy. The distinctively American institution of judicial review exercises a limiting and ultimately a shaping influence on the criminal process. 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. To the extent that tensions between the two models are resolved by deference to the Due Process Model, the authoritative force at work is the judicial power, working in the distinctively judicial mode of invoking the sanction of nullity. That is at once the strength and the weakness of the Due Process Model: its strength because in our system the appeal to the Constitution provides the last and overriding word; its weakness because saying no in specific cases is an exercise in futility unless there is a general willingness on the part of the officials who operate the process to apply negative prescriptions across the board. It is no accident that statements reinforcing the Due Process Model come from the courts, while at the same time facts denying it are established by the police and prosecutors.


1. Paul Bator, “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,” Harvard Law Review 76 (1963): 441-442.

Source: Reprinted by
from The Limits of the Criminal Sanction by Herbert L. Packer, with the permission of the publishers, Stanford University Press.  1968 by Herbert L. Packer.

No comments: