(1.3)models of criminal justice

What did Herbert Packer do in 1968

1968, Herbert Packer, an American professor of law and criminology, described two constructing sets of values which shape the way criminal justice systems work.

What are the 2 opposing models of criminal justice

•the crime control control model of justice

•the due process model of justice

The crime control model

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What is crime a threat to

Crime is a threat to people’s freedom and so the goal of the crime control model is the suppression of crime.

What does it prioritise

It prioritises catching and punishing offenders, deterring and preventing them from committing further crime

What does this model start from

This model starts from a presumption of guilt. It trusts the police to be able to identify those who are probably guilty through their investigations and interrogations

What should the police be free from

Police should be free from unnecessary legal technicalities that prevent them investigating crime

What happens once the ‘probably guilty’ is identified

Once the ‘probably guilty’ are identified, it favours a conveyor belt or assembly line justice system that speedily prosecuted, convicts and punished them

What does this model argue

It argues that if a few innocent people are occasionally convicted by mistake, this is a price with paying for convicting a large number of guilty people

What does this argument mean

This statement reflects a system that prioritises the suppression of crime, rather than the rights of an individual

What does this model emphasise

It emphasises the rights of society and victims to be protected from crime, rather than the rights of suspects

What is a suppression of crime

Preventing the inception of any crime, or preventing expansion of, or terminating, a crime after occurrence

What is a presumption of guilt

A legal principle that suggests a person is considered guilty of a crime until proven innocent.

What is a presumption of innocence

A fundamental right in many legal systems, requiring the prosecution to prove the defendants guilt

The due process model

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What is the power of state to an individual

The power of the state is the greatest threat to the individual’s freedom and so the goal of the due process model is to protect the accused from oppression by the state and its agents. These include the police, prosecutors and judges

What does this model start from

This model starts from a presumption of innocence. The accused is innocent until proven guilty after a fair trial

What does it have less faith in

It has less faith in the police’s ability to conduct satisfactory investigations. Incompetence, dishonesty etc. Means that suspects’ and defendants’ rights need to be safeguarded by a set of due process rules that investigations and trials must follow.

What does the lack of faith include

These include rules about arrest, questioning, legal representation, admissibility and disclosure of evidence, cross-examination of witnesses, no secret trials

What is done rather than the conveyor belt

Rather than a conveyor belt carrying the accused swiftly to punishment, the rules and procedures protecting their rights form a necessary obstacle course that prosecutors have to overcome before they can secure a conviction

What does this mean

This means that the guilty sometimes go free on a ‘technicality’ (e.g where the prosecution have relied on illegally obtained evidence) However, the model argues that this is a lesser evil than convicting the innocence

What does this model emphasise

This model emphasises the rights of the accused individual rather than those of the victim or society

What is due process

Due process is a constitutional guarantee that requires the government to follow established legal procedures before depriving an individual of life, liberty or property. It serves as a safeguard against arbitrary and unlawful treatment by the state, ensuring that individuals have the right to a fair hearing and the opportunity to defend their interests when facing legal actions.

Models links to theories

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How does the crime control model and theory link to right realism

Right realism- the crime control model is a right-wing, conservative approach to justice and it has much in common with right realists theories of crime. E.G- zero tolerance policing strategies, it favours giving the police greater powers to investigate and suppress crime

What is the zero tolerance theory (right realism)

Strict policies to maintain social order.

How does the crime control model link to functionalism

Functionalism- the crime control model also has links with Durkheim’s functionalist theory that punishment reinforces society’s moral boundaries. As the main function unction of justice is to punish the guilty enables society to express its moral outrage and strengthen social cohesion

How does the labelling theory link to the due process model

Labelling theory- the due process model is a liberal approach. It aims to stop state agencies like the police from oppressing people. Links to labelling theory because the police may be tempted to act illegally, harassing groups that they label negatively as ‘typical criminals’. The due process model offers some protection against this because it requires the police to follow lawful procedures and not exceed their powers.

How does left realism link to the due process model

Left realism- argues that oppressive ‘militaristic policing’ of poor areas triggers confrontations and makes residents unwilling to assist the police. In the left realist view, police must follow due process by acting in a lawful and non-discriminatory way if they want to fight crime effectively, since this depends on the cooperation of the community

The two models and UK justice system

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What do the rules governing the working of the justice system question

Do the rules protect the rights of the accused, or do they favour the prosecution?

What does the way the system works in prison questions

Do the police, prosecutors and judges actually follow the rules and procedures as they should?

Rules governing the working of the justice system

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What does this include

There are many due process rules to protect the individual’s rights during an investigation and trial. E.G - illegally obtained evidence may be ruled inadmissible in court. This includes a confession obtained by using toryture as it can be said to support the due process model, since it protects the defendant’s guilt

What is a limitation to this

However, the judge has the power to admit illegally obtained evidence if he/she believes it will help to establish the truth. This could be said to support the crime control model, since it may lead to a conviction. (Eg evidence found during a search conducted without a warrant)

Due process and crime control in practice

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What do we need look at

We need to look at how the system works in practice. E.g are the rules that protect suspects’ and defendants’ rights followed in reality, in the police station and the courtroom?

What happens in most cases

It may be that in most cases, police, prosecutors and judges respect the due process rights of the accused and follow correct procedure. Eg - only a small proportion of defendants who are convicted of an offence seek to appeal against either their conviction or their sentence, which could indicate that most are reasonably satisfied with the way their case was processed by the justice ie system

What can happen (limitation)

Miscarriages of justice - as a result of the police, prosecution or judges failing to follow correct procedures and in some cases even breaking the law themselves. These cases point to the fact that in practice the justice system does not always operate according to the principles of the due process model. (Birmingham 6)