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Friday, May 18, 2007

Two Models of the Criminal Process ( I )


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.

Two models of the criminal process will let us perceive the normative antinomy at the heart of the criminal law. These models are not labeled Is and Ought, nor are they to be taken in that sense. Rather, they represent an attempt to abstract two separate value systems that compete for priority in the operation of the criminal process. Neither is presented as either corresponding to reality or representing the ideal to the exclusion of the other. The two models merely afford a convenient way to talk about the operation of a process whose day-to-day functioning involves a constant series of minute adjustments between the competing demands of two value systems and whose normative future likewise involves a series of resolutions of the tensions between competing claims.

I call these two models the Due Process Model and the Crime Control Model. . . . As we examine the way the models operate in each successive stage, we will raise two further inquiries: first, where on a spectrum between the extremes represented by the two models do our present practices seem approximately to fall; second, what appears to be the direction and thrust of current and foreseeable trends along each such spectrum?

There is a risk in an enterprise of this sort that is latent in any attempt to polarize. It is, simply, that values are too various to be pinned down to yes-or-no answers. The models are distortions of reality. And, since they are normative in character, there is a danger of seeing one or the other as Good or Bad. The reader will have his preferences, as I do, but we should not be so rigid as to demand consistently polarized answers to the range of questions posed in the criminal process. The weighty questions of public policy that inhere in any attempt to discern where on the spectrum of normative choice the “right” answer lies are beyond the scope of the present inquiry. The attempt here is primarily to clarify the terms of discussion by isolating the assumptions that underlie competing policy claims, and examining the conclusions that those claims, if fully accepted, would lead to.


Each of the two models we are about to examine is an attempt to give operational content to a complex of values underlying the criminal law. As I have suggested earlier, it is possible to identify two competing systems of values, the tension between which accounts for the intense activity now observable in the development of the criminal process. The actors in this development—lawmakers, judges, police, prosecutors, defense lawyers—do not often pause to articulate the values that underlie the positions that they take on any given issue. Indeed, it would be a gross oversimplification to ascribe a coherent and consistent set of values to any of these actors. Each of the two competing schemes of values we will be developing in this section contains components that are demonstrably present some of the time in some of the actors’ preferences regarding the criminal process. No one person has ever identified himself as holding all of the values that underlie these two models. The models are polarities, and so are the schemes of values that underlie them. A person who subscribed to all of the values underlying the other would be rightly viewed as a fanatic. The values are presented here as an aid to analysis, not as a program for action.

Some Common Ground

However, the polarity of the two models is not absolute. Although it would be possible to construct models that exist in an institutional vacuum, it would not serve our purposes to do so. We are postulating, not a criminal process that operates in any kind of society at all, but rather one that operates within the framework of contemporary American society. This leaves plenty of room for polarization, but it does require the observance of some limits. A model of the criminal process that left out of account relatively stable and enduring features of the American legal system would not have much relevance to our central inquiry. For convenience, these elements of stability and continuity can be roughly equated with minimal agreed limits expressed in the Constitution of the United States and, more importantly, with unarticulated assumptions that can be perceived to underlie those limits. Of course, it is true that the Constitution is constantly appealed to by proponents and opponents of many measures that affect the criminal process. And only the naive would deny that there are few conclusive positions that can be reached by appeal to the Constitution. Yet there are assumptions about the criminal process that are widely shared and that may be viewed as common ground for the operation of any model of the criminal process. Our first task is to clarify these assumptions.

First, there is the assumption, implicit in the ex post facto clause of the Constitution, that the function of defining conduct that may be treated as criminal is separate from and prior to the process of identifying and dealing with persons as criminals. How wide or narrow the definition of criminal conduct must be is an important question of policy that yields highly variable results depending on the values held by those making the relevant decisions. But that there must be a means of definition that is in some sense separate from and prior to the operation of the process is clear. If this were not so, our efforts to deal with the phenomenon of organized crime would appear ludicrous indeed (which is not to say that we have by any means exhausted the possibilities for dealing with that problem within the limits of this basic assumption).

A related assumption that limits the area of controversy is that the criminal process ordinarily ought to be invoked by those charged with the responsibility for doing so when it appears that a crime has been committed and that there is a reasonable prospect of apprehending and convicting its perpetrator. Although police and prosecutors are allowed broad discretion for deciding not to invoke the criminal process, it is commonly agreed that these officials have no general dispensing power. If the legislature has decided that certain conduct is to be treated as criminal, the decision makers at every level of the criminal process are expected to accept that basic decision as a premise for action. The controversial nature of the occasional case in which the relevant decision makers appear not to have played their appointed role only serves to highlight the strength with which the premise holds. This assumption may be viewed as the other side of the ex post facto coin. Just as conduct that is not proscribed as criminal may not be dealt with in the criminal process, so conduct that has been denominated as criminal must be treated as such by the participants in the criminal process acting within their respective competences.

Next, there is the assumption that there are limits to the powers of government to investigate and apprehend persons suspected of committing crimes. I do not refer to the controversy (settled recently, at least in broad outline) as to whether the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to the states with the same force with which it applies to the federal government. Rather, I am talking about the general assumption that a degree of scrutiny and control must be exercised with respect to the activities of law enforcement officers, that the security and privacy of the individual may not be invaded at will. It is possible to imagine a society in which even lip service is not paid to this assumption. Nazi Germany approached but never quite reached this position. But no one in our society would maintain that any individual may be taken into custody at any time and held without any limitation of time during the process of investigating his possible commission of crimes, or would argue that there should be no form of redress for violation of at least some standards for official investigative conduct. Although this assumption may not appear to have much in the way of positive content, its absence would render moot some of our most hotly controverted problems. If there were not general agreement that there must be some limits on police power to detain and investigate, the highly controversial provisions of the Uniform Arrest Act, permitting the police to detain a person for questioning for a short period even though they do not have grounds for making an arrest; would be a magnanimous concession by the all-powerful state rather than, as it is now perceived, a substantial expansion of police power.

Finally, there is a complex of assumptions embraced by terms such as “the adversary system,” “procedural due process,” “notice and an opportunity to be heard,” and “day in court.” Common to them all is the notion that the alleged criminal is not merely an object to be acted upon but an independent entity in the process who may, if he so desires, force the operators of the process to demonstrate to an independent authority (judge and jury) that he is guilty of the charges against him. It is a minimal assumption. It speaks in terms of “may” rather than “must.” It permits but does not require the accused, acting by himself or through his own agent, to play an active role in the process. By virtue of that fact the process becomes or has the capacity to become a contest between, if not equals, at least independent actors. As we shall see, much of the space between the two models is occupied by stronger or weaker notions of how this contest is to be arranged, in what cases it is to be played, and by what rules. The Crime Control Model tends to de-emphasize this adversary aspect of the process; the Due Process Model tends to make it central. The common ground, and it is important, is the agreement that the process has, for everyone subjected to it, at least the potentiality of becoming to some extent an adversary struggle.

So much for common ground. There is a good deal of it, even in the narrowest view. Its existence should not be overlooked, because it is, by definition, what permits partial resolutions of the tension between the two models to take place. The rhetoric of the criminal process consists largely of claims that disputed territory is "really" common ground: that, for example, the premise of an adversary system "necessarily" embraces the appointment of counsel for everyone accused of crime, or conversely, that the obligation to pursue persons suspected of commuting crimes "necessarily" embraces interrogation of suspects without the intervention of counsel. We may smile indulgently at such claims; they are rhetoric, and no more. But the form in which they are made suggests an important truth: that there is a common ground of value assumption about the criminal process that makes continued discourse about its problems possible.

Crime Control Values

The value system that underlies the Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process. The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom. If the laws go unenforced—which is to say, if it is perceived that there is a high percentage of failure to apprehend and convict in the criminal process—a general disregard for legal controls tends to develop. The law-abiding citizen then becomes the victim of all sorts of unjustifiable invasions of his interests. His security of person and property is sharply diminished, and, therefore, so is his liberty to function as a member of society. The claim ultimately is that the criminal process is a positive guarantor of social freedom. In order to achieve this high purpose, the Crime Control Model requires that primary attention be paid to the efficiency with which the criminal process operates to screen suspects, determine guilt, and secure appropriate dispositions of persons convicted of crime.

Efficiency of operation is not, of course, a criterion that can be applied in a vacuum. By “efficiency” we mean the system's capacity to apprehend, try, convict, and dispose of a high proportion of criminal offenders whose offenses become known. In a society in which only the grossest forms of antisocial behavior were made criminal and in which the crime rate was exceedingly low, the criminal process might require the devotion of many more man-hours of police, prosecutorial, and judicial time per case than ours does, and still operate with tolerable efficiency. A society that was prepared to increase even further the resources devoted to the suppression of crime might cope with a rising crime rate without sacrifice of efficiency while continuing to maintain an elaborate and time-consuming set of criminal processes. However, neither of these possible characteristics corresponds with social reality in this country. We use the criminal sanction to cover an increasingly wide spectrum of behavior thought to be antisocial, and the amount of crime is very high indeed, although both level and trend are hard to assess. At the same time, although precise measures are not available, it does not appear that we are disposed in the public sector of the economy to increase very drastically the quantity, much less the quality, of the resources devoted to the suppression of criminal activity through the operation of the criminal process. These factors have an important bearing on the criterion of efficiency, and therefore on the nature of the Crime Control Model.

The model, in order to operate successfully, must produce a high rate of apprehension and conviction, and must do so in a context where the magnitudes being dealt with are very large and the resources for dealing with them are very limited. There must then be a premium on speed and finality. Speed, in turn, depends on informality and on uniformity; finality depends on minimizing the occasions for challenge. The process must not be cluttered up with ceremonious rituals that do not advance the progress of a case. Facts can be established more quickly through interrogation in a police station than through the formal process of examination and cross-examination in a court. It follows that extrajudicial processes should be preferred to judicial processes, informal operations to formal ones. But informality is not enough; there must also be uniformity. Routine, stereotyped procedures are essential if large numbers are being handled. The model that will operate successfully on these presuppositions must be an administrative, almost a managerial, model. The image that comes to mind is an assembly-line conveyor belt down which moves an endless stream of cases, never stopping, carrying the cases to workers who stand at fixed stations and who perform on each case as it comes by the same small but essential operation that brings it one step closer to being a finished product, or, to exchange the metaphor for the reality, a closed file. The criminal process, in this model, is seen as a screening process in which each successive state—prearrest investigation, arrest, postarrest investigation, preparation for trial, trial or entry of plea, conviction, disposition—involves a series of routinized operations whose success is gauged primarily by their tendency to pass the case along to a successful conclusion.

What is a successful conclusion? One that throws off at an early stage those cases in which it appears unlikely that the person apprehended is an offender and then secures, as expeditiously as possible, the conviction of the rest, with a minimum of occasions for challenge, let alone post-audit. By the application of administrative expertness, primarily that of the police and prosecutors, an early determination of the probability of innocence or guilt emerges. Those who are probably innocent are screened out. Those who are probably guilty are passed quickly through the remaining stages of the process. The key to the operation of the model regarding those who are not screened out is what I shall call a presumption of guilt. The concept requires some explanation, since it may appear startling to assert that what appears to be the precise converse of our generally accepted ideology of a presumption of innocence can be an essential element of a model that does correspond in some respects to the actual operation of the criminal process.

The presumption of guilt is what makes it possible for the system to deal efficiently with large numbers, as the Crime Control Model demands. The supposition is that the screening processes operated by police and prosecutors are reliable indicators of probable guilt. Once a man has been arrested and investigated without being found to be probably innocent, or, to put it differently, once a determination has been made that here is enough evidence of guilt to permit holding him for further action, then all subsequent activity directed toward him is based on the view that he is probably guilty. The precise point at which this occurs will vary from case to case; in many cases it will occur as soon as the suspect is arrested, or even before, if the evidence of probable guilt that has come to the attention of the authorities is sufficiently strong. But in any case the presumption of guilt will begin to operate well before the “suspect” becomes a “defendant.”

The presumption of guilt is not, of course, a thing. Nor is it even a rule of law in the usual sense. It simply is the consequence of a complex of attitudes, a mood. If there is confidence in the reliability of informal administrative fact-finding activities that take place in the early stages of the criminal process, the remaining stages of the process can be relatively perfunctory without any loss in operating efficiency. The presumption of guilt, as it operates in the Crime Control Model, is the operational expression of that confidence.

It would be a mistake to think of the presumption of guilt as the opposite of the presumption of innocence that we are so used to thinking of as the polestar of the criminal process and that, as we shall see, occupies an important position in the Due Process Model. The presumption of innocence is not its opposite; it is irrelevant to the presumption of guilt; the two concepts are different rather than opposite ideas. The difference can perhaps be epitomized by an example. A murderer, for reasons best known to himself, chooses to shoot his victim in plain view of a large number of people. When the police arrive, he hands them his gun and says, “I did it and I'm glad.” His account of what happened is corroborated by several eyewitnesses. He is placed under arrest and led off to jail. Under these circumstances, which may seem extreme but which in fact characterize with rough accuracy the evidentiary situation in a large proportion of criminal cases, it would be plainly absurd to maintain that more probably than not the suspect did not commit the killing. But that is not what the presumption of innocence means. It means that until there has been an adjudication of guilt by an authority legally competent to make such an adjudication, the suspect is to be treated, for reasons that have nothing whatever to do with the probable outcome of the case, as if his guilt is an open question.

The presumption of innocence is a direction to officials about how they are to proceed, not a prediction of outcome. The presumption of guilt, however, is purely and simply a prediction of outcome. The presumption of innocence is, then, a direction to the authorities to ignore the presumption of guilt in their treatment of the suspect. It tells them, in effect, to close their eyes to what will frequently seem to be factual probabilities. The reasons why it tells them this are among the animating presuppositions of the Due Process Model, and we will come to them shortly. It is enough to note at this point that the presumption of guilt is descriptive and factual; the presumption of innocence is normative and legal. The pure Crime Control Model has no truck with the presumption of innocence, although its real-life emanations are, as we shall see, brought into uneasy compromise with the dictates of this dominant ideological position. In the presumption of guilt this model finds a factual predicate for the position that the dominant goal of repressing crime can be achieved through highly summary processes without any great loss of efficiency (as previously defined), because of the probability that, in the run of cases, the preliminary screening process operated by the police and the prosecuting officials contains adequate guarantees of reliable fact-finding. Indeed, the model takes an even stronger position. It is that subsequent processes, particularly those of a formal adjudicatory nature, are unlikely to produce as reliable fact-finding as the expert administrative process that precedes them is capable of. The criminal process thus must put special weight on the quality of administrative fact-finding. It becomes important, then, to place as few restrictions as possible on the character of the administrative fact-finding processes and to limit restrictions to such as enhance reliability, excluding those designed for other purposes. As we shall see, this view of restrictions on administrative fact-finding is a consistent theme in the development of the Crime Control Model.

In this model, as I have suggested, the center of gravity of the process lies in the early, administrative fact-finding stages. The complementary proposition is that the subsequent stages are relatively unimportant and should be truncated as much as possible. This, too, produces tensions with presently dominant ideology. The pure Crime Control Model has very little use for many conspicuous features of the adjudicative process, and in real life works out a number of ingenious compromises with them. Even in the pure model, however, there have to be devices for dealing with the suspect after the preliminary screening process has resulted in a determination of probable guilt. The focal device, as we shall see, is the plea of guilty; through its use, adjudicative fact-finding is reduced to its barest essentials and operating at its most successful pitch, it offers two possibilities: an administrative fact-finding process leading (1) to exoneration of the suspect, or (2) to the entry of a plea of guilty.

Due Process Values
.......... Part II

Source: Reprinted 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. Published by

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