Sociology Index E-Books

DUE-PROCESS MODEL

Two models of crime: the due process model and the crime control model have been debated. The due process model is an ideal type used to capture one side in the debate over the central values or practices of the criminal justice system. Public Health Model looks at crime affecting public health.

The due process model gives priority to values and practices that protect the rights of the offenders from the coercive power of the state. This due process model protection would include strict regulation of police enforcement, independent and impartial judicial process (due process), and imposition of proportional and justifiable punishment. Due process model emphasizes the need to reform people through rehabilitation and rehabilitative ideal.

The due process model starts with "skepticism about the morality and utility of the criminal sanction" especially in relation to "victimless crimes" based on consensual transactions. This skepticism is based on the liberal values of "the primacy of the individual and the complementary concept of limitation on official power" and concerns about the intrusive policing required to enforce drug, obscenity, and prostitution laws.

The due process model is based on the doctrine of legal guilt and the presumption of innocence. 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.

"Because the Due Process Model is basically a negative model, asserting limits on the nature of official power and on the modes of its exercise, its validating authority is judicial and requires an appeal to supralegislative law, to the law of the Constitution. 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: its strength because in our system the appeal to the Constitution provides the last and overriding word; its weakness because saying no in specific cases is an exercise in futility unless there is a general willingness on the part of the officials who operate the process to apply negative prescriptions across the board. It is no accident that statements reinforcing the Due Process Model come from the courts, while at the same time facts denying it are established by the police and prosecutors." - from The Limits of the Criminal Sanction by Herbert L. Packer.

Due Process 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: This article argues that the adjudication of transnational criminal cases in the United States raises troubling questions about the government's commitment to principled criminal process standards. 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 crime control model posits that the most important function of the criminal justice system is to suppress crime. The due process model focuses on the fallibility of the process. Its primary concern is with fairness and reliability. Balancing the norms of the two models is challenging, but necessary. No such balancing exists in the global crime era. Instead, crime control norms usurp due process model values as a result of Mutual Legal Assistance Treaties (MLATs) 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.

In 1968, Professor Herbert Packer published The Limits of the Criminal Sanction. In his book, Prof. Packer discusses the attributes of the two conflicting models of a criminal justice system. 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. The outcomes of Due Process Model are that it protects citizens from the powers of the state, enhances the legal rights of the accused, and provides fairness, equality, and justice for all.

Due Process vs. Crime Control Model

Two models of crime: the due process model and the crime control model have been debated for a long time.

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.

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.

"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. Criticisms of a similar nature have been directed at the Military Commissions established in the U.S. for the trials of "certain non-citizens in the War Against Terrorism".
However, legal personnel operating in these systems tend to dispute such claims, while an analysis of the legal procedures prevailing in the military courts in the Occupied Territories authored by the Deputy President of the Military Appeals Court of Judea and Samaria argues persuasively that these procedures have undergone reform and now differ little from those practised in the regular criminal courts.
Such claims, insofar as they may be substantiated, raise the question as to the significance of the adoption of due process 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. McBarnet argued that such a contrast may be chimerical, since the formal processes might in fact be serving to legitimate crime control.