Crime Control Model, Public Health 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. 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 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.
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 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 norms and simultaneously
preserve effective crime control. Under the framework, U.S. prosecutors must obtain
important foreign evidence needed by defendants in domestic prosecutions. The framework is
consistent with existing doctrine, is familiar to the courts and the parties, and will
leave MLATs intact so that their benefits can inure to both prosecutors and defendants.
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
The second model is the Due Process Model, the purpose of which is to ensure that
the rights of the defendant are protected. This 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 [government] agencies are controlled. The outcomes
of this model are ostensibly 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." - Goff, Colin, Criminal Justice in Canada, 3d Ed., Thomson-Nelson, Scarborough,
2004, at pages 20 & 21.
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
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.