Four Models of the Criminal Process

Article excerpt



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. …