Crime Control Model
Due Process Model, Public Health Model
Due Process vs. Crime Control Model
Two models of crime: the due process model and the crime control model have been debated
for a long time.
Due process model gives credence to the principle that an individual cannot be deprived of
life, liberty, or property without appropriate legal procedures and safeguards. When
people are charged with a crime they are required to have their rights protected by the
criminal justice system under the due process model.
Crime control model for law enforcement is based on the assumption of absolute reliability
of police fact-finding and treats arrestees as if they are already found guilty.
There have been many papers comparing and contrasting the role that the due process and
crime control models have on shaping criminal procedure policy.
There are many differences between the due process model and the crime control model:
In the due process model people that
are arrested are perceived to be innocent until proven in a court of law. The crime
control model believes that the people that are arrested are guilty and need to be
punished by the government.
Due process model believes that policing within the
criminal justice system is essential to maintaining justice within society. Crime control
model believes that the arresting of people in the criminal justice system has a negative
effect and slows down the process of the criminal justice system.
The courts generally prefer the due process model because
the due process model equally favours all citizens, even the criminally accused, by
securing their rights and freedom. Due process model assures that all individuals rights
are protected as stated in the Bill of rights.
Law enforcement agencies generally prefer the crime control model. They treat arrested as
if they were already guilty and emphasize on arrest, prosecution and conviction of those
who have broken the law.
Due process model guarantees that each individual is
protected under the 4th amendment and 8th amendment. Due process model does not favour
illegal search and seizure. Due process model prescribes the right to a speedy fair and
public trial, self incrimination and unusual punishment.
Crime control model tries to deter crime by all means. Crime control model is less
protective of individual rights. Crime control model is in favour of the idea that
individual rights must be put aside for the purpose of maintaining public safety. Crime
control model assumes that sometimes one has to give up ones rights for the benefit of
society as a whole.
THE CRIME CONTROLS AND DUE PROCESS MODELS
defenseinvestigator.com/article10.html, By Brandon A. Perron, Board Certified Criminal
Defense Investigator
The American justice system’s need for an effective strategy to combat crime has been
debated for years. In fact, close examination reveals that the core of the controversy and
conflicting philosophies are fundamentally liberal and conservative and thus political in
nature. Consider the goals of the American Criminal Justice system for a moment. The
Primarily the goals can be categorized into two very distinct missions: (1) the need to
enforce the law and maintain social order, and (2) the need to protect people from
injustice.[1] A cursory examination would appear to reflect that the two goals represent a
common and consistent ideology. However, the two goals are generally considered to be in
conflict with each other. The first goal is referred to as the crime control model and was
developed by Herbert Packer and presented to the academic world in his analysis of the
criminal justice system in the 1960’s.[2] This model places an emphasis and priority
upon the aggressive arrest, prosecution, and conviction of criminals. The second goal is
quite the opposite focusing upon protecting the individual rights of the accused and is
commonly referred to as the due process model.
The political considerations are obvious. Historically, the conservative position has
generally endorsed the crime control model with the liberal position defending and
supporting the due process model. Many would argue that the two positions would always be
in conflict with each other forcing the American justice system to either make a choice or
remain ineffective. To some the decision is black or white arguing that only one of the
two goals can be effectively pursued. Unfortunately, such a perspective is a common
symptom of political influence. After all, police agencies are government entities and
therefore generally have no choice but to answer and conform to changing political
will.
Consider the various methods employed to pursue the crime control model. The argument in
support of such a philosophy and its methods is rather compelling. Proponents endorse an
all out assault upon criminal activity. The term “War on Crime” is commonly
referred to by politicians and law enforcement as a means to identify, pursue, isolate,
and ultimately eliminate the criminal element in our society. Such a strategy may include
targeting high crime areas, increased patrols and traffic stops, profiling, undercover
sting operations, wiretapping, surveillance, and aggressive raids and searches designed to
break the back of criminal activity. Proponents argue that certain individual rights must
be sacrificed for the common good. The positive effects of such a strategy are obvious in
that criminals and criminal activity becomes the direct target of law enforcement. Entire
neighborhoods plagued by prostitution, drugs, and gang activity have been cleared and made
safe for law-abiding citizens. Due to the existence of significant and visible results
such strategies are also generally popular by the citizenry and politicians. However, the
“War on Crime” like all wars often results in collateral damage. For example, in
Morgantown, West Virginia police raided the home of a 72-year-old woman based upon what
the police claimed was a “bad tip”. According to a confidential informant, the
suspect residence was a drug den cultivating marijuana plants. However, the aggressive
raid resulted only in the recovery of 60 pepper and tomato plants.[3] Such collateral
damage is often considered acceptable. Unfortunately, collateral damage can also result in
the loss of human life. Real “war” maintains a degree of what is referred to as
“acceptable losses”. Consider the following case in point: In Boston,
Massachusetts, a drug raid by police left a 75 year old minister dead of a heart attack.
The raid was based upon information from a paid informant, rejected two months earlier by
police as “unreliable”. The police, prepared and expecting to encounter
“four heavily armed drug dealers and a kilogram of cocaine”, burst into the
apartment of the minister with a SWAT team. The 75-year-old minister described as
“frail” was chased into his bedroom by police, wrestled to the floor, and
handcuffed. The minister collapsed during the struggle and died of heart failure.
Following the incident the police learned that the informant had provided the wrong
apartment number. The police commissioner later apologized stating that “the one
tragic fact which is clear at this time is that the minister was an innocent victim in the
continuing war on drugs.”[4] The two examples described here are extreme but also
significant. The strict proponents of the crime control model must ask themselves if such
incidents are “acceptable losses”? The ancient Roman advocate Cicero made an
interesting and relevant point when he said, “the law is silent during
war”.[5]
The strengths and weaknesses of the crime control model have been demonstrated but what of
the due process model? Should the American Justice system be focused solely upon the
fundamental freedoms and individual rights of each and every citizen? American
jurisprudence is grounded in the philosophy set forth by Sir William Blackstone: “It
is better that ten guilty escape than one innocent suffer”.[6] The due process model
demands a careful and informed consideration of the facts of each individual case.
According to this model, law enforcement agents must recognize the rights of suspects
during arrest, questioning, and handling. In addition, constitutional guarantees must be
considered by judges and prosecutors during trials. The primary mission of the due process
model is to protect innocent people from wrongful conviction.[7] It is doubtful that many
would argue against the fact that we must engage in significant efforts to protect those
who may be falsely accused. However, many argue that while the due process model focuses
upon the rights of the accused it ignores the rights of victims.
The Fourth Amendment of the United States Constitution prohibits unreasonable search and
seizures stating, “The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and
particularly describing the places to be searched and the persons or things to be
seized.”[8] The law enforcement community repeatedly complains that the Fourth
Amendment limits their ability to combat crime. Careful study reveals that the limitations
upon law enforcement actually stem from the various and never ending decisions rendered by
the courts in respect to their interpretation of the Fourth Amendment. New interpretations
may expand or further limit the power of the police. Such changes often cause confusion
and are subject to change and new interpretation at any time by the courts. Furthermore,
the due process model does not limit itself to the Fourth Amendment. The police must also
consider the individual rights of the accused in respect to many of the individual rights
guaranteed by the Bill of Rights. For example, 1) a right to be assumed innocent until
proven guilty, 2) a right against arrest without probable cause, 3) a right against
self-incrimination, 4) a right to an attorney, and 5) a right to fair questioning by the
police.[9] Of course this is just a small sampling of the individual rights guaranteed by
the United States Constitution and they are continually subject to change as interpreted
by the courts. Where does it end? Do the rights of the individual outweigh the rights of
the many? Proponents of the due process model argue that the rights of the one in fact
represent the rights of the many. However, everyone does not always view the claims of
victory by due process model proponents as just or moral for that matter. On March 21,
2001 the American Civil Liberties Union (ACLU) hailed a 6-3 decision by the United States
Supreme Court “holding that pregnant women cannot be subject to warrantless,
suspicionless searches simply because they are pregnant”.[10] The issue in question
was presented in Ferguson V. City of Charleston, specifically related to a public
hospitals policy that pregnant women be subjected to surreptitious drug screens of their
urine, results of which were turned over to the police. The policy resulted in the arrest
of twenty-nine women. The ACLU stated that the decision “sends a clear message that
even a conservative court is not willing to allow the serious erosion of our basic
constitutional rights in the name of the war on drugs.”[11] The decision in this case
provided an example of the continuing debate in respect to the due process model. The
decision rendered in Ferguson V. City of Charleston could be considered a weakness or
strength of the due process model dependent upon your particular perspective.
We have addressed both the crime control model and the due process model and have found
significant strengths and weaknesses inherent to both of them. Close examination reveals
that law enforcement agencies must be careful not to allow their agencies to pursue one
model with disregard for the other. Both appear to have potential pitfalls and dangers
that could threaten both safety and security and the individual freedoms that have made
the United States a beacon of stability and freedom throughout the world. Liberal
proponents of the due process model believe that the crime control model is too harsh and
pursues the ideology of a police state. The arguments of the conservative supporters of
the crime control model complain that the due process model protects the guilty at the
expense of innocent law abiding citizens. However, we must recognize that we will probably
always be confronted with ideological conflict from each end of the philosophical and
political spectrum. Considering the various weaknesses and strengths of the two models
some experts, such as noted criminologist Frank Scmalleger, support a new approach where
“it is realistic to think of the U.S. system of justice as representative of crime
control through due process”.[12] Such a philosophy provides a moderate approach that
protects the individual freedoms Americans have fought and died for and protects society
from a criminal element that is intent on doing them harm. Frank Scmalleger argues that
crime control through due process combines the strengths of the two models while also
recognizing and avoiding the weaknesses and potential dangers to our society. A true test
of this model has been thrust upon the American justice system. The tragic and horrific
events of the September 11, 2001 terrorist attack upon the World Trade Center and Pentagon
will force a heated and emotional debate. Thousands of lives have been lost in a senseless
attack on United States soil. Criminal Justice and Judicial leaders will be confronted
with the daunting task of balancing the responsibility of protecting American citizens
while also protecting the individual rights of those accused. However, the political winds
have already changed with many Americans concerned primarily with security and safety.
This emotional shift may evolve into a philosophical change and result in an American
public willing to sacrifice a degree of individual freedom in exchange for security and
safety. Of course, characterization of the terrorist act as an “Act of War” will
almost certainly change the rules. It is within this context that Cicero’s words will
be tested and my inevitably haunt us.
It is impossible to know what the future holds in respect to the American justice system.
The future is often determined not by our intentions but by the uncontrollable events we
encounter while pursuing our goals. Criminal Justice administrators may not be able to
achieve every goal they set for their agency but they can maintain a clear and focused
philosophy. The crime control through due process model appears to be the best strategy to
deal with crime in the days ahead. It is interesting to note that Frank Scmalleger’s
interpretation and combination of the two models appears to be consistent with the very
framework laid out by the founding fathers in the United States Constitution when they
wrote, “We the People of the United States, in Order to form a more perfect Union,
establish justice, insure domestic tranquility, provide for the common defense, promote
the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this Constitution for the United States of America.” Only
time will tell.
Two models of crime: the due process model and the crime control model have been debated for a long time.
The due process model is an ideal type used to capture
one side in the debate over the central values or practices of the criminal justice
system.
The due process model gives priority to values and
practices that protect the rights of the offenders from the coercive power of the state.
This protection would include strict regulation of police
enforcement, independent and impartial judicial process (due process), and imposition of
proportional and justifiable punishment.
Due process model emphasizes the need to reform people
through rehabilitation.
The due process model starts with "skepticism about
the morality and utility of the criminal sanction" especially in relation to "victimless crimes" based on consensual transactions.
This skepticism is based on the liberal values of "the primacy of the individual and
the complementary concept of limitation on official power" and concerns about the
intrusive policing required to enforce drug, obscenity, and prostitution laws.
The due process model is based on the doctrine of legal guilt and the presumption of
innocence.
Due process model supporters argue that pretrial detention should be used sparingly if at
all, and that people should be entitled to remain free until they are found guilty unless
they pose a threat to society.
Due process model enthusiasts also argue for the elimination of the grand jury, which they
say has become a rubber stamp for prosecutors.
"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." - from The Limits of the Criminal
Sanction by Herbert L. Packer
Due Process for the Global Crime Age: A Proposal
L. Song Richardson, DePaul University College of Law
Cornell International Law Journal, Vol. 41, No. 2, 2008
Abstract: This article argues that the adjudication of transnational criminal cases in the
United States raises troubling questions about the government's commitment to principled
criminal process standards. Concern over global crime has resulted in a criminal process
that inadequately protects fairness and legitimacy norms. Over 40 years ago, in his
seminal work on the domestic criminal process, Herbert Packer described two models of
criminal procedure: the crime control model and the due process model. The crime control
model posits that the most important function of the criminal justice system is to
suppress crime. The due process model focuses on the fallibility of the process. Its
primary concern is with fairness and reliability. Balancing the norms of the two models is
challenging, but necessary. No such balancing exists in the global crime era. Instead,
crime control norms usurp due process values as a result of Mutual Legal Assistance
Treaties (MLATs) which regularize foreign evidence gathering for prosecutors while
explicitly preventing defendants from using them. This article breaks new ground by
constructing a framework that will both protect due process norms and simultaneously
preserve effective crime control. Under the framework, U.S. prosecutors must obtain
important foreign evidence needed by defendants in domestic prosecutions. The framework is
consistent with existing doctrine, is familiar to the courts and the parties, and will
leave MLATs intact so that their benefits can inure to both prosecutors and defendants.
In 1968, Professor Herbert Packer published The Limits of
the Criminal Sanction. In his book, Prof. Packer discusses the attributes of the two
conflicting models of a criminal justice system. The first model is the Crime Control
Model, the purpose of which is to “reduce the number of criminals on the
street”. This is accomplished by “increasing the number of police, increasing
the number of correctional facilities (and filling them up), increasing the length of
sentences meted out by the Courts, giving criminal justice agencies more legal powers
(investigative, coercive, and repressive), and proceeding on the basis at trial of
‘guilty until proven innocent’”. The outcomes of this model are ostensibly
that “it reduces crime, protects citizens and the community, punishes offenders, and
provides ‘efficient’ justice”.
The second model is the Due Process Model, the purpose of which is to “ensure that
the rights of the defendant are protected”. This model achieves this by
“limiting and controlling the powers of the police, limiting the discretion and the
activities of Crown Prosecutors and Judges so that all accused are treated fairly, and
ensuring that the powers of all [government] agencies are controlled.” The outcomes
of this model are ostensibly that “it protects citizens from the powers of the state,
enhances the legal rights of the accused, and provides fairness, equality, and justice for
all." - Goff, Colin, Criminal Justice in Canada, 3d Ed., Thomson-Nelson, Scarborough,
2004, at pages 20 & 21.
Those critical of the Air India outcome and of our Courts and Judges in general are, in
essence, advocating for the Crime Control Model, and blaming all our woes on the Due
Process Model. And they certainly are correct that the Due Process Model is the one in
operation in the criminal justice system in Canada today. The Due Process Model evolved
over centuries in British jurisprudence, and is enshrined in our common law, the Canadian
Bill of Rights, and the Canadian Charter of Rights and Freedoms. - The Reporter -
johnhoward.ab.ca/newslet/spring05/1.htm \
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