Four models of the criminal process.

• Author: Roach, Kent W.

FOUR MODELS OF THE CRIMINAL PROCESS

1. INTRODUCTION

   Ever since Herbert Packer published "Two Models of the Criminal Process" in 1964,(1) much thinking about criminal justice has been influenced by the construction of models. Models provide a useful way to cope with the complexity of the criminal process. They allow details to be simplified and common themes and trends to be highlighted. "As in the physical and social sciences, [models present] a hypothetical but coherent scheme for testing the evidence" produced by decisions made by thousands of actors in the criminal process every day.(2) Unlike the sciences, however, it is not possible or desirable to reduce the discretionary and humanistic systems of criminal justice to a single truth. Multiple models are helpful because "multiple versions of what is going on, existing side by side, may legitimately account in different ways for various aspects of the system's operation."(3) For thirty-five years now, the major models have been Packer's due process and crime control models.

   Models serve multiple purposes. They provide a guide to judge the actual or positive operation of the criminal justice system. Packer's crime control model suggested that most cases end in guilty pleas or prosecutorial withdrawals whereas his due process model suggested that the cases that go to trial and are appealed were the most influential. Models can also provide a normative guide to what values ought to influence the criminal law. Packer was somewhat reticent in this regard(4), but it is clear that his crime control model was based on societal interests in security and order while his due process model was based on the primacy of the fights of the individual in relation to the state. Models of the criminal process can also describe the ideologies and discourses which surround criminal justice. The most successful models have become terms of art so that people in public discourse now debate and advocate the crime control and due process values that Packer identified.(5) At a discursive level, Packer's models have become self-fulfilling prophecies.

   The new models presented in this paper are based on different conceptions of victims' rights. Like Packer's crime control and due process models, they aspire to offer positive descriptions of the operation of the criminal justice system, normative statements about values that should guide criminal justice, and descriptions of the discourses which surround criminal justice. Models based on victims' rights can thus describe phenomena such as the new political case which pits the accused against crime victims or minority and other groups associated with crime victims,(6) or restorative justice practices which bring crime victims and their supporters together with offenders and their supporters.(7) Normatively, my punitive model of victims' rights affirms the retributive and expressive importance of punishment and the need for the rights of victims to be considered along with the rights of the accused. My non-punitive model of victims' rights attempts to minimize the pain of both victimization and punishment by stressing crime prevention and restorative justice. Discursively, both punitive and non-punitive models of victims' rights promise to control crime and respect victims, but the punitive model focuses all of its energy on the criminal justice system and the administration of punishment while the non-punitive model branches out into other areas of social development and integration. In short, the construction of models provides an accessible language to discuss the actual operation of the criminal process, the values of criminal justice, and the way that people think and talk about criminal justice.

   None of the models discussed or presented in this paper were intended to operate to the exclusion of others or to be accepted as the only legitimate positive, normative, or discursive guide to the criminal process. It is, however, valuable to identify the areas where each model is dominant and to have a sense of the overall trends. It can be liberating to appreciate the different values found in the criminal process and the contingency of which model dominates in what particular area at what particular time. It can be constraining, however, if the models do not capture the full range of options or values in the criminal process(8) and it will be suggested that this is true with respect to Packer's famous due process and crime control models. Packer's models may still strike a chord, but slowly and surely, they are becoming as out of date as other hits of the 1960's.

   Packer's models ]have been remarkably durable and still describe important facets of the practice and politics of criminal justice. Nevertheless, they have been persuasively criticized since they were first presented in 1964. They are now inadequate guides to describe the law and politics of criminal justice. Empirically, normatively, and discursively, they have become impoverished. They cannot explain why women, children, minorities and crime victims claim fights to the criminal sanction and they cannot comprehend the new political case which pits due process claims, not against the community's claims to enforce morality,(9) but against the rights claims of crime victims and disadvantaged groups of potential victims. Packer's models thus cannot make any sense of contemporary debates about pornography(10) or hate speech(11), influenced as they are by feminism and critical race theories which focus on the effects of such speech on disadvantaged groups. They also cannot make sense of contemporary concerns about the prevalence of sexual and domestic violence against women and children and hate crimes against minorities.

   Packer's crime control model assumes that the criminal law could control crime without accounting for the fact, revealed by victimization studies,(12) that most crime victims do not report crime to the police. He assumes that punishment is necessary to control crime whereas it may achieve little in the way of general deterrence(13) and may make things worse by stigmatizing offenders and producing defiance.(14) Packer assumes that fair treatment could only be achieved through an adversarial criminal trial in which an accused is represented by a defense lawyer. We now know that defense lawyers rarely invoke due process rights(15) and that circle-based alternatives such as restorative justice, family conferences, and Aboriginal justice can be run without lawyers and in a procedurally fair manner that encourages participation.(16) Packer's assumptions about the conflict between crime control and due process were challenged by first the American(17) and then the Canadian(18) experience which demonstrated that a due process revolution was not inconsistent with increased crime control as measured by growing prison populations. Packer assumed that due process conflicts with crime control, but new research suggests that offenders may be more law abiding if treated fairly.(19) Contrary to Packer's assumptions, fair treatment may be necessary for effective crime control and punishment may not be necessary to control crime.

   New models of criminal justice will have to have some foundation in present practice, as well as some normative and discursive appeal. They should be able to describe the work of legislatures, administrators, and courts,(20) but not be limited by Packer's assumptions about the limited, liberal nature of governance or the central place of an adversarial system staffed by public sector professionals. New models should account for the large number of crimes that victims do not report and incorporate understandings of group fights and risks that have evolved since Packer wrote. They could eventually become part of criminal justice discourse and used to either emphasize the rights of crime victims and demands for punishment or the needs of crime victims for better forms of crime prevention and restorative justice. Each new model will continue., however, only to offer a partial explanation of criminal justice and its conflicting values. Punitive and nonpunitive forms of victims' rights will co-exist in different parts of the criminal justice system. Like Packer's models, victims' rights models will eventually have to be re-evaluated in light of new knowledge, practices, and politics. At present, however, punitive and non-punitive victims' rights models can explain much about the practices, norms, and discourses of criminal justice.

2. PACKER'S TWO MODELS OF CRIMINAL JUSTICE

   The most successful attempt to construct models of the criminal process was achieved by the American legal scholar, Herbert Packer. His due process and crime control models set the standard for more than a generation of observers.(21) Many have attempted to replace or add to Packer's models,(22) but none have enjoyed his success and durability. Critics(23) have, however, had some success in de-constructing his models.

   The essence of Packer's two models can be captured by evocative metaphors. The criminal process in the crime control model resembles a high speed "assembly-line conveyor belt"(24) operated by the police and prosecutors. The end product of the assembly-line is a guilty plea. In contrast, the due process model is an "obstacle course"(25) in which defense lawyers argue before judges that the prosecution should be rejected because the accused's rights have been violated. The assembly line of the crime control model is primarily concerned with efficiency while the due process model is concerned with fairness to the accused and "quality control."(26) What follows are descriptions of the two abstract and dichotomized models as Packer understood them. Subsequent sections will move beyond these descriptions and place Packer's models in their historical and social contexts.

   1. THE CRIME CONTROL MODEL

      The crime control model looks to the legislature, as opposed to the courts, as...