Sociology Index

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DUE PROCESS MODEL

Due Process Model, Crime Control Model, and Public Health Model are debated as models of crime. Due process model is based on the doctrine of legal guilt and the presumption of innocence. The outcomes of Due Process Model are that it protect a citizen from the powers of the state, enhances the legal rights of the accused, and provides fairness, equality, and justice for all. Due process model is used to capture one side in the debate over the central values or practices of the criminal justice system. Due process involves both procedual and substantive aspects. Due process model is based on the principle that a citizen has some absolute rights and cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards. Due process model emphasizes the need to reform people through rehabilitation and rehabilitative ideal. Due process model gives priority to values and practices that protect the rights of the offenders from the coercive power of the state. Due process model protection would include strict regulation of police enforcement, independent and impartial judicial process, and imposition of proportional and justifiable punishment. Due process model starts with "skepticism about the morality and utility of the criminal sanction" in relation to victimless crime or consensual crime.

Due process model supporters argue that pretrial detention should be used sparingly if at all, and that people should be entitled to remain free until they are found guilty unless they pose a threat to society. Due process model enthusiasts also argue for the elimination of the grand jury, which they say has become a rubber stamp for prosecutors. Due Process Model is basically a negative model, asserting limits on the nature of official power and on the modes of its exercise. To the extent that tensions between the two models are resolved by deference to the Due Process Model, the authoritative force at work is the judicial power, working in the distinctively judicial mode of invoking the sanction of nullity. That is at once the strength and the weakness of the Due Process Model. Statements reinforcing the Due Process Model come from the courts, while facts denying it are established by the police and prosecutors.

Due Process vs. Crime Control Model

The attributes of the two conflicting models of a criminal justice system. The due process model and the crime control model have been debated.

The first model is the Crime Control Model, the purpose of which is to reduce the number of criminals on the street.

The second model is the Due Process Model, the purpose of which is to ensure that the rights of the defendant are protected.

Due Process Model achieves this by limiting and controlling the powers of the police, limiting the discretion and the activities of Crown Prosecutors and Judges so that all accused are treated fairly, and ensuring that the powers of all agencies are controlled. Due process model gives credence to the principle that an individual cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards. When people are charged with a crime they are required to have their rights protected by the criminal justice system under the due process model. There have been many papers comparing and contrasting the role that the due process and crime control models have on shaping criminal procedure policy.

Due process law can be traced back to the Magna Carta, the document, whose creation in 13th century England began the process of whittling down of monarchical powers in favour of the ruled that culminated in universal adult suffrage and formal, institutionalised democracy. A 14th century version of the Magna Carta contained the provision. “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law," said the document. The due process of law matters is fundamental for a democracy. The rule of law is a corollary of the equality of individuals so fundamental to democracy. There is no rule of law without due process. In an orderly society, individuals surrender the right to use force to the state. Might is not right. To determine who is in the wrong, meaning who has flouted the law, the due process of law must be followed. Without the due process, there is no rule of law. Without the rule of law, there is no intrinsic equality or democracy. Encounter killings, devoid of the due process of law in establishing the victim’s culpability, is essentially anti-democratic. India’s Constitution explicitly guarantees the due process of law. Article 21, part of the chapter on fundamental rights, is all about it: No person shall be deprived of his life or personal liberty except according to procedure established by law.

There are many differences between the due process model and the crime control model: In the due process model people that are arrested are perceived to be innocent until proven in a court of law. The crime control model believes that the people that are arrested are guilty and need to be punished by the government. Due process model believes that policing within the criminal justice system is essential to maintaining justice within society. Crime control model believes that the arresting of people in the criminal justice system has a negative effect and slows down the process of the criminal justice system.

The courts generally prefer the due process model because the due process model equally favours all citizens, even the criminally accused, by securing their rights and freedom. Due process model assures that all individuals rights are protected as stated in the Bill of rights. Law enforcement agencies generally prefer the crime control model. They treat arrested as if they were already guilty and emphasize on arrest, prosecution and conviction of those who have broken the law.

Due process model guarantees that each individual is protected under the 4th amendment and 8th amendment. Due process model does not favour illegal search and seizure. Due process model prescribes the right to a speedy fair and public trial, self incrimination and unusual punishment. If the crime control model dominates, criminal courts will probably handle an increasing number of juveniles. Juvenile courts may be eliminated altogether. Ironically, if the due process model dominates, juvenile justice might be eliminated anyway, because of concerns about procedural rights.

Due Process Model for the Global Crime Age: A Proposal, L. Song Richardson, DePaul University College of Law, Cornell International Law Journal, Vol. 41, No. 2, 2008.
Abstract: Concern over global crime has resulted in a criminal process that inadequately protects fairness and legitimacy norms. Over 40 years ago, in his seminal work on the domestic criminal process, Herbert Packer described two models of criminal procedure: the crime control model and the due process model. The due process model focuses on the fallibility of the process. Crime control norms usurp due process model values as a result of Mutual Legal Assistance Treaties which regularize foreign evidence gathering for prosecutors while explicitly preventing defendants from using them. This article breaks new ground by constructing a framework that will both protect due process model norms and simultaneously preserve effective crime control.

"Military Justice and Occupation: Due Process for "Insurgency Control"?" - Sebba, Leslie. Presented at the annual meeting of the The Law and Society Association, May 27, 2008.
Abstract: Israel is currently "commemorating" 40 years of the establishment of its military justice system in the occupied territories. Recent publications (Courting Conflict by Lisa Hajjar and a Machsom-Watch report) suggest a legal system tainted with failure to implement civil liberties and due process model. Such claims raise the question as to the significance of the adoption of due process model procedures in a politico-security regime the legitimacy of which is challenged by a majority of the population to whom it is applied. There may be an analogy here with Doreen McBarnet's critique of Herbert Packer's famous dichotomy in which he contrasted the Due Process model with the Crime Control model of the criminal process.