Two Models of the Criminal Process
HERBERT L. PACKER
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.
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.
wo 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.
VALUES UNDERLYING THE MODELS
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...
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