The Fifteenth Kenneth J. Hodson Lecture in Criminal Law: A Criminal Justice System Divided Against Itself

• Author: by Dean James E. Band
• Pages: 02

1. INTRODUCTION

On 27 March 1986, Dean James E. Bond of the University of Puget Sound School of law delivered the Fifteenth Kenneth J. Hodson Lecture in Criminal Law at The Judge Advocate Generai's School.

Dean Bond is a graduate of Wabash College (B.A. 19641, Harvard Law School (L.L.B. 1961), and the University of Virginia School of Law (LL.M. 1971 and S J.D. 1972). He clerked for a US.diitrict court judge

and was an instructor at The Judge Advocate General's School, U.S. Army, from 1968 to 1972. He was an kssaciate Professor of Law at Washington and Lee University from 1972 until 1975, a Professor of Law at Wake Forest University Sehool of Law from 1915 until 1986. and became Dean of the University of Puget Sound School of Law in 1986. Dean Band has taught constitutional law, criminal law, criminal procedure, jurisprudence, professional responsibility, international law, comparative law, and administrative law. His published books include Plea Bargaining and Guilty Plea (2d edition 1982) and The Rules of Rwt: Internal Conflict and the Law of War (1974) In 1986 he will pub. lish James Chrk McReynalds. IBssent. Aleo, Dean Band has published over a dozen mholarly articles in various law reviews.

The text of Dean Bond's Hadson Lecture fallows.

Ours 1s a criminal justice system divided against itself On the one hand, the Supreme Court has hctated what has been called a due process model of the criminal justice aystem., And the suggestion that the Burger Court has Asmantled that 8ystem--8 system imposed upon us by the Warren Court-1s simply not true. Rather, the present court has at Some points called B "stop" to further changes in the cnminaliustice sys. tem. In the lineup area, far example, it has not extended United States u. Wadel in the ways that the opinion ought logically to be extended if one

lSergenirall> H Packer, The Limits ai the Crvninal Sanction 11968) '388US 218(19671

accepts the rationele of the Court's decision in In other areas the Court has limited the application of some Warren Court decisions. In the interrogation area, for example, it has not overruledMmndo u. Aruann' but has repeatedly limited the application of that decisimb Yet, in other areas the Burger Court in fact has moved the Warren Court model for. ward, as, for example. in the decision requiring appointment of a psychi. atrist to assist the accused in his defene8 In short. the due proeesa model of the cnmmal justice system dictated to us by the Warren Court is very much alive and well in recent decisions of the Supreme Court of the United States.

At the same time that the Court has betated this version of the trim. inal justice system, the police, the prosecutors. the judges, the parole and probation officers. and the wardens of our prisons continue to oper. ate a different kind of criminal justice system.' This alternative system has been called the crime control system. It 1s B system that puts much more emphasis on efficiently ferreting out crime and expeditiously prosecuting and punishing those found guilty of crime than it does on protecting the constitutional rights of those charged with crime.

How has this problem evolved? m a t accounts for a criminal justice aystem divided against itself? The problem has grown out of the tension between law enforcement experience and a revolution in the Court's per. ception of its role and it8 construction of the Constitution. The crime control system emerged out of the actual experiences of those charged with the administration af cnminal justice. Their experience has been that quick investigation and effective interrogation are important to the solution of crime and to the punishment of those who have committed crime. At the same time, the Court since the early sixties has adapted a revolutionary view of its own role and has construed the Constitution very differently from its predecessors.

Let me elaborate on that last point The Justices in the last twenty-five years increasingly have come to view themselves as statesmen who must fashion sound public policy, not jut in the area of criminal prom

'See, e 8 , Kirby Y Illinois 406 C S 682 (19721 (defendant aha hss been arrested but not formally charged LS nut entitled to counsel ~f police ststlon identlflcatmn) Cf Outed States Y Gouvem, 467 US 180 (19841 lpnson ~nmsie~held m sdmmatratwe detentm whle prmn authorities invenfigate crmnal charges sgonat the ~msferare not entltled

to a~~iataneeof appointed coun~el pmr to the iniristian of formal adversary pmceedmgsl

'384CS 43611966)'Sol. e g .Nerlorkv Qudes.467L'S 649119641(officerneadnatglve.~~mnda U B T ~ . 1ngs If pubhc safeti requaei immediate inferragation of the iuspectl. Michigan Y Tucker. 417 C S 433 11974) ltenfiman) of w~rnesi rhoae identity WI learned by ~uest~alung defendantmtheabbeneeof full.Mirandr usinings~assdma.ible)

*Ake$ Oklahoma 105s Cr 1087(1985)'begenrrnllr CrimeandPubhc Pahci IJ llilsaned 19631

1986 CRIMINAL JUSTICE

dure, but moss the board by wisely balancing the competing interests involved in any particular area. A majority of these judicial statesmen have convinced themselves that the appropriate model for the criminal justice system is the due process model, B model that puts enormoustime and resources into "quality control": that is, into ensuring that only the guiltyare convicted.

If you think of the criminal justice system as an industry, it is eaay to see the difference between the due process and crime control models of the criminal praeess. Under the due proeesa model, most resources are put into "after checks" because you want to aesure yourself that the end product-the conviction-is not only valid in terms of the merite but also is fashioned in a procedurally correct way. Contrariwise, the crime can. trol model places more confidence in the people who are on the assembly line. It assumes that because of their expertiee at every stage of the process-investigation, prosecution, incarceration-we can justifiably rely on the validity of their prafesaional judgments.

In any case, the Court has, a8 I have sad. come to see itself as a group of statesman rather than as craftsmen Beyond that, of course, the Court has construed the Constitution very differently from its predecessors, in two significant ways. First, it has insisted that the due praeess clause of the fourteenth amendment incorporates and makes applicable against the States the fourth, fifth, sixth, and eighth amendments, the amend. ments that deal chiefly with criminal procedure! Consequently, we are now operating under a common, uniform aystem of criminal procedure in this country, a system of criminal procedure dictated by the Supreme Court of the United Sbtes. Second, the Court has conatrued the substan. tive provisions of the fourth, fifth, sixth, and eighth amendments very broadly. Consequently, that common uniform code of criminal proeedure is an extremely liberal one. infused with all of the values and all of the biases inherent in...