Arguments about due process and crime control are too simplistic to resolve the conflicts of interests found in criminal justice. Discuss Essay

Arguments about due process and crime control are too simplistic to resolve the conflicts of interests found in criminal justice. Discuss Essay

Arguments about due process and crime control are too simplistic to resolve the conflicts of interests found in criminal justice because they seek to make finite the application of both frameworks to criminal justice (CJ) as two completely separate approaches with differing wanted outcomes. But for Herbert Packer (1969), who developed these models the debate is not between two conflicting value positions, but instead positions reflecting different points on the same spectrum. This is evident as whilst crime control is viewed as being concerned with the repression of crime and due process with the protection of the innocent they both seek the same objective namely punish the guilty and free the innocent, although the means by which they achieve this objective varies. An example is seen by applying the models to a CJ institution such as the police, through the eyes of crime control policing is seen as a war against crime and criminals and so advocates that tough policing strategies are needed, thus holds steadfast that the means does justify the end. On the other end of the spectrum however, due process maintains that police should adhere to the letter of the law i.e. they operate within policies and strategies. Commencing with crime control both models will now be explored in relation criminal justice.

Crime control views the most important function of CJ as the repression of criminal conduct. The absence of that repression results in a fear of crime and a loss of social freedom through disregard for the criminal law. Its answer is attaining high conviction and detention rates as the means of achieving the ultimate function of repression. The model holds high conviction and detention rates synonymous with speed and minimising opportunities for challenge thus finds formal fact-finding through the court to be slow and wasteful. It sees speed being achieved by allowing for example the police to undertake interrogations to establish facts. To further guarantee speed, procedures must be uniform and routine, so that the model as a whole resembles a conveyer belt in its operation (Sanders, 2000, p. 22). The confidence it places in the informal administrative fact finding process is reflected in its belief that the probably innocent are screened out whilst the probably guilty proceed through the remainder of the CJ process. The model accepts that some errors will be made in this screening process and is willing to tolerate these mistakes to ensure the efficient repressing of crime. It even views its own pre-trial process as producing more reliable evidence than formal court proceedings. Still utilising the police as an example and in keeping with the models need for speed, crime control sees a guilty plea as means of curtailing the judicial stage of the CJ process and so the police seek to get confessions from those they presume to be guilty. The presumption of guilt is what makes it possible for the crime control system to deal efficiently with large numbers and routine procedures are essential if large numbers are to be handled.

Packer concludes, when reduced to its barest essentials and operating in its most successful pitch, it offers two possibilities: an administrative fact finding process leading to (1) exoneration of the suspect or (2) the entry of the guilty plea (1969, p. 162 – 163).

Looking at the operation of the CJ system thus far there are prominent crime control features, these include for example decisions to stop and search and arrests made on police instinct not reasonable suspicion, routine and authorised detention for the reason of obtaining a confession (which in certain situations constitutes proof beyond reasonable doubt) and plea bargaining (through its use adjudicative fact-finding is reduced to its barest essentials). Thus, it can be conceded that crime control invariably trumps individual rights and the broader constitutional values related to the Rule of Law (Bronitt, 2004, p. 2). At the heart of this model lies the guilty plea and the early administrative fact-finding stages which in turn make the subsequent stages inconsequential.

Though crime control may accept rules forbidding illegal arrests or coercive interrogations such as the Police and Crime and Evidence Act and its subsequent codes of practice, it opposes the consequences of those rules which mainly include making inadmissible in court illegally obtained evidence or the quashing of convictions because of a breach of the rules. Though this is the standpoint of crime control, the opposite is true of the due process model.

Due process lacks confidence in informal fact-finding processes as it argues that the police will innately have the belief that they have correctly apprehended the correct suspect and so it advocates formal adjudicative, adversary fact-finding. Its ideological stance is not converse to that of crime control as it does not maintain that it is not socially desirable to repress crime. It leaves open a large margin for error and thus maintains that the possibility of a case being reopened to take account of new facts should always be a possibility. The aim of the process is at least as much to protect the factually innocent as it is to convict the factually guilty (Packer, 1969, p. 165). The due process model seeks to uphold a complexity of values some of which are based on the efficacy of crime control devices which is concurrent to another of its values, in particular the individual citizen. The connection here is that due process declares the need for controls over the state to prevent it form using is powers in a coercive and oppressive manner over the individual. An example of these controls is seen through the presumption of innocence over guilt, consequently placing the burden on the state to prove legal guilt in a procedurally proper manner. Taking the viewpoint of the passing bystander this would appear to be more than fair as the state, being a super power in comparison to the individual would have at its disposal the necessary resources to take on such a task. The models concern with the abuse of power in some instances takes precedents over reliability. This is apparent as in cases where the police have illegally obtained evidence that undoubtedly establishes the guilt of a suspect, the model insists that the evidence be inadmissible as a demonstration to officials that there is nothing to be gained by using their powers oppressively.

One of the main premises the due process model rests on is that of equality. As there cannot be equal justice if the kind of trial a man gets depends on the amount of money at his disposal, the due process model holds that every man should have the same resources at his disposal to ensure that an effective and reliable defence is conducted. This manifests itself in the provision of a lawyer to advise or represent clients, whom through financial inability do not have one, this occurs where the theoretical right to be supplied with one exists. The role of the lawyers is central to the model as they are needed to bring into play the remedies and sanctions which due process offers as checks against the operation of the system (Sanders, 2000, p. 25).

Lastly the due process model has a mood of skepticism about the morality and utility of the criminal sanction, taken either as a whole or in some of its applications. It sees the use of sanctions being targeted at the psychologically and economically disadvantaged. And because there are doubts about the ends for which power is being exercised, pressure is created to limit the discretion with which that power is exercised (Packer, 1969, p. 171).

In summation a crude reiteration of these arguments can be understood as in the case of the crime control model there is the main concern of convicting the guilty at the risk of convicting the factually innocent and thus the possible infringement of civil liberties is seen as a necessary price to pay to achieve its goal. It resembles an assembly line conveyor-belt guaranteeing speed and uniformity thus subverting adversarial procedures. Examining the conviction it puts in the police and prosecution it can be said that the model adheres to some inquisitorial ideological values. Whilst on the other hand due process holds steadfast morality and individuality, putting foremost the protection of civil liberties and the prevention of state coercive powers. Its somewhat preoccupation with morality and adherence to procedure reflects moral standards and its belief of leading by example.

Accordingly, it can be said that the due process model resembles an obstacle course in that it provides successive hindrances to impede suspects advancing thorough the criminal justice process.

Application of these models to CJ reveals the danger of such simplistic arguments as it leaves the absolute of an either or proposition, providing no compromise in an atmosphere inherent of conflicting interests and influences on criminal justice such as those emanating from the multi-cultural make up of this society. Evidence of such conflicts can be seen through the inquiries of the deaths of Stephen Lawrence and Damilola Taylor. Though subject to some criticism on the grounds that they represent an over- simplification of what is, in fact, a complex structure, Packer’s crime control and due process models of criminal justice remain useful evaluative concepts (Roberts, 2004, p. 5). There remains no indication of a possible merger of ideologies or the incorporation of any additional elements. However, a union of both models or future incorporation of other elements may produce a hybrid paradigm most effective in eliminating the simplicity of the individual models thus resolving the conflict of interests found in criminal justice.

Bibliography

(2000) Police Commentary. Police Journal. PJ 73 (295)
Bronitt, S. (2004) The Law In Undercover Policing: A Comparative Study Of Entrapment And Covert Interviewing In Australia, Canada And Europe. Common Law World Review. CLWR 33.1(35)
Packer, H. (1969) The Limits of the Criminal Sanction. London: Stanford U.P.
Ramraj, V. (2004) Four Models Of Due Process. International Journal of Constitutional Law. ICon 2.3(492)
Roberts, A. (2004) The Problem Of Mistaken Identification: Some Observations On Process. Intenational Journal of Evidence and Proof. EvPro 8(100)
Sanders, A. (2000) Criminal justice / Andrew Sanders, Richard Young. London : Butterworths.

Related Essays

Leave a Reply

Your email address will not be published. Required fields are marked *