Differences of Due Justice and Crime Control

According to an essay published online on the USLegal.com website, crime control refers to a theory of criminal justice that places an emphasis on reducing crime in society through increased police and prosecutorial powers. In contrast, the due justice model of crime and punishment focuses on individual liberties and rights. To do so, the due justice model limits the powers of government in criminal prosecution. Crime control emphasizes the power of the government to protect society by repressing criminal conduct. The crime control model places less emphasis and less importance on individual civil liberties.

Acceptance of the crime control model would also imply

acceptance of the view that due process protects criminals and handicaps police and prosecutors in their efforts to protect society and punish criminal behavior. According to the USLegal.com essay, people who favor a tough approach to crime and punishment would be proponents of the crime control model. Individuals who are interested in and motivated to curb government intrusions and harassment of suspects would be characterized as favoring due justice over crime control (“Crime control model,” 2010).

According to an essay published online on the Legal Dictionary, the majority of criminal statutes may be characterized as crime control acts. Crime control acts tend to include enhanced criminal sentences for individuals convicted of certain types of crimes. An example of this is the Three Strikes laws that have been passed in many states. Under these laws, an individual convicted of a third serious felony crime are subject to a mandatory minimum sentence. In California, that sentence is 25 years to life imprisonment.

According to the Legal Dictionary, the term crime control act involves both existing criminal and new criminal statutes. The U.S. Congress enacted a series of crime control statutes during the late 20th century. Some of these new laws created federal criminal penalties for money laundering, carjacking, federal anti-terrorism provisions, and included enhanced penalties for violent crimes as well as for drug trafficking. These new laws focused on enhancing penalties for certain types of crimes. Any law enacted that includes enhanced criminal penalties for those convicted are focused on punishment rather than on rehabilitation (“Crime control acts,” 2010).

According to an essay published on the Simply Inconceivable.com website entitled “Due Process or Crime Control?”, in 1964 Professor Herbert Packer of Stanford University described two models of criminal justice process – namely due process vs. crime control. Under the due process model, the criminal justice process is an obstacle course. The criminal justice system is stacked in favor of criminal defendants based on the premise that it would be better to allow ten guilty people to go free than to convict one innocent person. The fundamental principle of the due justice system is a presumption of innocence. According to Packard, the key tenets of the true justice system include:

The prosecution must prove every ingredient of the offense beyond a reasonable doubt.

The goal of the criminal justice process is to be error free.

The accused has the right to remain silent at any point from arrest through trial, and that nothing can be inferred from a defendant’s silence.

The accused has the right not to incriminate himself or herself.

The accused is entitled to receive a copy of all evidence in the possession of the prosecution, but the defense does not have to reciprocate by providing its evidence to the prosecution.

A criminal defendant always has the right to legal counsel even if he or she cannot pay for it.

Certain statements made by the defendant and certain evidence obtained by the police may be barred at trial based on procedural requirements.

Any evidence, even if true, will not be admissible at trial if it could have a prejudicial effect on the jury.

Police officers must be held to the highest ethical standards. They must report every event with complete accuracy and honesty.

Police have broad discretion to make decisions about how to act in a given situation. Their decision to act or not to act cannot be based on any form of prejudice.

According to Packer’s paper, the features of the crime control model suggest that the repression of crime is the most important function of the criminal justice system. The rationale is that social order is a necessary condition for a society to function properly and effectively. The key tenets of the crime control model are that:

Criminal justice should focus on victims and on victims’ rights rather than on protecting defendants’ rights.

Police powers should be expanded to make it easier for the police to investigate crimes, arrest suspects, search individuals, and seize evidence.

Any legal technicalities that limit the effectiveness of the police should be eliminated. For example, any statement made by a suspect or defendant should be admissible except those considered to be an involuntary and coerced meaning potentially false.

Once an arrest has been made, the accused should be presumed guilty.

The criminal justice process should operate swiftly.

There should be a high rate of convictions in criminal cases, and the primary objective of the criminal justice system should be to establish the guilt of the accused.

If a defendant chooses to remain silent, the judge or the jury may draw an adverse inference from that silence.

Only limited challenges should be permitted to convicted criminals, meaning that requests for appeal of a conviction would be granted far less frequently.

The guilty will be held accountable for their actions.

Compromise of due process is necessary to ensure the success of crime control.

Implicit in acceptance of Packer’s crime control model of justice and punishment is acceptance of ideas that would be offensive to many people. For example, entrapment would be a legitimate tool for police. The rationale for this is that if someone was not a criminal, they would not be tempted by whatever bait was presented by the police to entrap them. Another controversial aspect of the crime control model is the idea that it is acceptable for police to lie in court if that is the only way to secure a criminal conviction.

One of the most important questions that must be asked when considering the merits of a crime control model is whether the crime control model deters criminal behavior. It is possible that such radical changes in the criminal justice system would have a deterrent effect on criminal activities. The deterrent effect would result from recognition that the police, and the courts were getting tough on crime.

One of the questions that would have to be answered is whether society would accept such radical changes to the criminal justice system as are implicit in the crime control model. Some people might argue that convicting even one innocent person would result in a public outcry against the crime control model, and that the conviction of even one innocent person would damage the credibility of the judicial process and would call into question all past criminal convictions that were based on the processes and protocols associated with the crime control model.

According to Packer, social order can be enhanced through better-trained police along with more sophisticated ways of gathering evidence. This would guarantee the basic right of individuals to due process combined with the right to protect individuals against an over-zealous police force and prosecutor. It would also result in more criminal convictions through the gathering and presentation of more compelling evidence of the defendant’s guilt at trial (Due process or crime control?”, 2008).

In her book “Criminal Justice Ethics,” Cyndi Banks explores the philosophical issues surrounding crime and punishment. Banks describes two main theories of punishment: (1) the utilitarian theory and (2) the retributive theory. Banks explains that if the theory of punishment is prevention of future crimes, then that form of punishment is referred to as utilitarian. Theories that focus on past criminal acts of an offender are called retributavist because they seek retribution from criminals for their crimes.

Retributavist theories hold that the purpose of punishment is to allocate blame for past offenses, and that an individual’s likely future conduct should not be considered when deciding punishment. Retribution theory asserts that punishment is justified because it is deserved. The retributavist position on justice and punishment makes no exceptions or allowances for factors that would mitigate responsibility for a criminal act. Instead, retribution theory looks only to the crime in determining the punishment. Retribution theory also does not concern itself with the effectiveness of the punishment.

The advantage of retribution theory is its simplicity. The retribution theory removes discretion from the criminal justice system. Here is an example: Even if it can be demonstrated that the death penalty is no better deterrent than life imprisonment, under the retribution theory of justice and punishment the death penalty would be used because questions about the effectiveness of punishment as a deterrent are irrelevant. A disadvantage of the retribution theory is that it does not consider mitigating circumstances. Another disadvantage is that it does not encourage or may actually not permit judicial discretion in sentencing (Banks, 2004).