Two Models of Criminal Process

Submitted to:
Dr P. K. Shukla

Submitted by:
Ekansh Arora
Roll No.: 2017BALLB01
B.A.LL.B.(Hons.)
Trimester IX
Section: B

Date of Submission: 30.04.2020

National Law Institute University, Bhopal

 TABLE OF CONTENTS

1. INTRODUCTION...............................................................................................................3
1.1. Hypothesis....................................................................................................................4
1.2. Research Questions.......................................................................................................4
1.3. Objectives.....................................................................................................................4
1.4. Research Methodology.................................................................................................4
1.5. Scope of Study..............................................................................................................5
1.6. Review of Literature.....................................................................................................5
2. HERBERT L. PACKER (1925 - 1972).............................................................................5
3. THE TWO MODELS OF CRIMINAL PROCESS.........................................................5
3.1. Values Underlying The Models....................................................................................6
3.2. Some Common Ground................................................................................................7
4. THE CRIME CONTROL MODEL.....................................................................................9
4.1. Murder in the Gym: Crime Control Model Example.................................................10
5. THE DUE PROCESS MODEL.......................................................................................11
5.1. Murder in the Gym: Due Process Model Example....................................................13
6. CRIME CONTROL V. DUE PROCESS: THE COMPETING
INSTITUTIONS OF CRIME CONTROL AND DUE PROCESS...................................13
7. CRITIQUE OF PACKER’S MODELS.............................................................................14
7.1. The Empirical Challenge............................................................................................15
7.2. Critical Legal Studies: Due Process is for Crime Control..........................................16
7.3. Victims’ Rights...........................................................................................................16
7.4. Restorative Justice......................................................................................................17
7.5. In Packer’s Defence....................................................................................................18
8. MODELS BASED OFF PACKER’S WORK...................................................................19
9. CONCLUSION.................................................................................................................19
10. BIBLIOGRAPHY..............................................................................................................21

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 1. INTRODUCTION
To help us to think about how criminal justice systems reflect the priorities of stakeholders,
some authors have developed so-called ‘models’ of criminal justice. These should not be read
as direct representations of any given criminal justice system, but they identify features of
criminal justice systems which reflect particular priorities and values.

The best known contribution here is by Herbert Packer. In his book “The Limits of the Criminal
Sanction” (1968), Packer developed two key models - the due process and crime control models
of criminal justice.

Those who study the criminal process owe a tremendous debt to Herbert Packer. Nearly eight
decades have passed since Packer provided what continues to be the dominant theoretical
account of the criminal process. In a now famous law review article, Packer theorised that
the criminal process is most usefully described as being in a perpetual state of tension as
between two competing models, which he defined as the ‘crime control model’ and the ‘due
process model’. In his ground-breaking work, Packer sketched out the contours of these
competing models. His theory has supplied the framework for nearly eight decades of debate
regarding the criminal process. Today, little is written on the topic that doesn’t acknowledge
Packer’s foundational contribution. The longevity of Packer’s ideas is clearly testament to the
perceptiveness of his insights.

The due process model prioritises the interests of the individual suspect who is confronted by
the mighty power of the State. Such an individual is entitled to a presumption of innocence,
and should not be found guilty of an offence other than by way of clearly defined and formal
decision-making processes. This model suggests that the criminal process sets legitimate
obstacles to the State, which must be negotiated if a conviction is to be secured.

By contrast, the crime control model was suggested to reflect the values of an assembly line
rather than an obstacle course. This model reflects the prioritisation of the efficient suppression
of criminal activity in the interests of public order. It involves speedy, informal and routinised
processes which are administered by criminal justice agents - e.g., police and prosecutors -
with the expertise to make sound judgements under those conditions.

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The academic fascination with Herbert Packer’s two models of the criminal process has yielded
an amazing thread of scholarship involving a variety of academic disciplines, linking various
topics, offering interesting insights on many criminal justice institutions and phenomena, and
spanning more than eight decades. This fruitful scholarly avenue began with the publication
of Packer’s classic article “Two Models of the Criminal Process” (1964), and continued, more
intensely and fiercely, after its reappearance as part 2 of The Limits of the Criminal Sanction
(1968). That this enthusiasm and engagement persist to this day is proof that criminal justice
scholarship indeed stands on the shoulders of giants.

1.1 HYPOTHESIS
That the two models of the criminal process propounded by Herbert Packer - the crime control
model and the due process model - stand in stark contrast to each other, and that one model
trumps the other and finds more relevance in a society at any point of time.

1.2 RESEARCH QUESTIONS

• What are the “two models of criminal process” propounded by Herbert Packer?
• Where on a spectrum between the extremes represented by the two models do our present
practices seem approximately to fall?
• What appears to be the direction and thrust of current and foreseeable trends along each such
spectrum?

1.3 OBJECTIVES
• To study, in detail, the “two models of criminal process” propounded by Herbert Packer.
• To examine whether one model trumps the other, and whether one model is more prevalent
in the day-to-day functioning of the criminal justice system.
• To critique Packer’s models, and to examine models based off his work.

1.4 RESEARCH METHODOLOGY

The mode of writing this research paper is doctrinal in nature. Secondary and electronic
resources have been largely used to gather information and data about the topic. Books and
other reference material have been helpful in giving this paper a firm structure. Websites,
dictionaries, and articles have also been referred. Footnotes have been provided where needed,
to acknowledge the source.

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1.5 SCOPE OF STUDY
The scope of study of the concerned paper is limited to analysing Packer’s work on the “two
models of criminal process”.

1.6 REVIEW OF LITERATURE

• “Two Models of the Criminal Process” (1964)
• “The Limits of the Criminal Sanction” (1968)

2. HERBERT L. PACKER (1925 - 1972)

Credited with propounding the “two models of criminal process” or the two models of the
criminal justice system, Herbert Leslie Packer (1925 – December 6, 1972) was an American
law professor and criminologist. A law graduate from Yale University, Packer published his
best work while as a law professor at Stanford. His rise to fame could be attributed to his
widely recognised article “Two Models of Criminal Process” (1964), followed by his book
“The Limits of the Criminal Sanction” (1968).

3. THE TWO MODELS OF CRIMINAL PROCESS

In what is regarded as one of the most important recent contributions to systematic thought
about the administration of criminal justice, Herbert Packer has articulated the values supporting
two models of the justice process. He notes the gulf existing between the “due process” model
of criminal administration, with its emphasis on the rights of the individual, and the “crime
control” model, which sees the regulation of criminal conduct as the most important function
of the judicial system.

Two models of the criminal process will let us perceive the normative antinomy at the heart of
the criminal law. These models are not labeled “is” and “ought”, nor are they to be taken in that
sense. Rather, they represent an attempt to abstract two separate value systems that compete for
priority in the operation of the criminal process. Neither is presented as either corresponding
to reality or representing ideal to the exclusion of the other. The two models merely afford a
convenient way to talk about the operation of a process whose day-to-day functioning involves

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a constant series of minute adjustments between the competing demands of two value systems
and whose normative future likewise involves a series of resolutions of tensions between
competing claims.

As we examine the way the models operate in each successive stage, we will raise two further
inquiries: first, where on a spectrum between the extremes represented by the two models do
our present practices seem approximately to fall?; second, what appears to be the direction and
thrust of current and foreseeable trends along each such spectrum?

There is a risk in an enterprise of this sort that is latent in any attempt to polarise. It is, simply,
that values are too various to be pinned down to yes-or-no answers. The models are distortions
of reality. And, since they are normative in character, there is a danger of seeing one or the
other as “good” or “bad”. The reader will have his preferences, as I do, but we should not be
so rigid as to demand consistently polarised answers to the range of questions posed in the
criminal process. The weighty questions of public policy that inhere in any attempt to discern
where on the spectrum of normative choice the “right” answer lies are beyond the scope of the
present inquiry. The attempt here is primarily to clarify the terms of discussion by isolating the
assumptions that underlie competing policy claims and examining the conclusions that those
claims, if fully accepted, would lead to.

3.1 VALUES UNDERLYING THE MODELS

Each of the two models we are about to examine is an attempt to give operational content to
a complex of values underlying the criminal law. As I have suggested earlier, it is possible
to identify two competing systems of values, the tension between which accounts for the
intense activity now observable in the development of the criminal process. The actors in this
development–lawmakers, judges, police, prosecutors, defence lawyers–do not often pause to
articulate the values that underlie the positions that they take on any given issue. Indeed, it
would be a gross oversimplification to ascribe a coherent and consistent set of values to any
of these actors. Each of the two competing schemes of values we will be developing in this
section contains components that are demonstrably present some of the time in some of the
actors’ preferences regarding the criminal process. No one person has ever identified himself as
holding all of the values that underlie these two models. The models are polarities, and so are
the schemes of values the other would be rightly viewed as a fanatic. The values are presented

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here as an aid to analysis, not as a program for action.

3.2 SOME COMMON GROUND

However, the polarity of the two models is not absolute. Although it would be possible to
construct models that exist in an institutional vacuum, it would not serve our purposes to
do so. We are postulating, not a criminal process that operates in any kind of society at all,
but rather one that operates within the framework of contemporary American society. This
leaves plenty of room for polarisation, but it does require the observance of some limits. A
model of the criminal process that left out of account relatively stable and enduring features
of the American legal system would not have much relevance to our central inquiry. For
convenience, these elements of stability and continuity can be roughly equated with minimal
agreed limits expressed in the Constitution of the United States and, more importantly, with
unarticulated assumptions that can be perceived to underlie those limits. Of course, it is true
that the Constitution is constantly appealed to by proponents and opponents of many measures
that affect the criminal process. And only the naive would deny that there are few conclusive
positions that can be reached by appeal to the Constitution. yet there are assumptions about
the criminal process that are widely shared and that may be viewed as common ground for the
operation of any model of the criminal process. Our first task is to clarify these assumptions.

First, there is the assumption, implicit in the ex post facto clause of the Constitution, that
the function of defining conduct that may be treated as criminal is separate from and prior
to the process of identifying and dealing with persons as criminals. How wide or narrow the
definition of criminal conduct must be is an important question of policy that yields highly
variable results depending on the values held by those making the relevant decisions. But
that there must be a means of definition that is in some sense separate from and prior to the
operation of the process is clear. If this were not so, our efforts to deal with the phenomenon
of organised crime would appear ludicrous indeed (which is not to say that we have by any
means exhausted the possibilities for dealing with that problem within the limits of this basic
assumption).

A related assumption that limits the area of controversy is that the criminal process ordinarily
ought to be invoked by those charged with the responsibility for doing so when it appears
that a crime has been committed and that there is a reasonable prospect of apprehending and

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convicting its perpetrator. Although police and prosecutors are allowed broad discretion for
deciding not to invoke the criminal process, it is commonly agreed that these officials have no
general dispensing power. If the legislature has decided that certain conduct is to be treated
as criminal, the decision-makers at every level of the criminal process are expected to accept
that basic decision as a premise for action. The controversial nature of the occasional case in
which the relevant decision-makers appear not to have played their appointed role only serves
to highlight the strength with which the premise holds. This assumption may be viewed as the
other side of the ex post facto coin. Just as conduct that is not proscribed as criminal may not
be dealt with in the criminal process, so conduct that has been denominated as criminal must
be treated as such by the participants in the criminal process acting within their respective
competences.

Next, there is the assumption that there are limits to the powers of government to investigate
and apprehend persons suspected of committing crimes. I do not refer to the controversy
(settled recently, at least in broad outline) as to whether the Fourth Amendment’s prohibition
against unreasonable searches and seizures applies to the states with the same force with which
it applies to the federal government. Rather, I am talking about the general assumption that a
degree of scrutiny and control must be exercised with respect to the activities of law enforcement
officers, that the security and privacy of the individual may not be invaded at will. It is possible
to imagine a society in which even lip service is not paid to this assumption. Nazi Germany
approached but never quite reached this position. But no one in our society would maintain
that any individual may be taken into custody at any time and held without any limitation of
time during the process of investigating his possible commission of crimes, or would argue
that there should be no form of redress for violation of at least some standards for official
investigative conduct. Although this assumption may not appear to have much in the way of
positive content, its absence would render moot some of our most hotly controverted problems.
If there were not general agreement that there must be some limits on police power to detain
and investigate, the highly controversial provisions of the Uniform Arrest Act, permitting the
police to detain a person for questioning for a short period even though they do not have
grounds for making an arrest, would be a magnanimous concession by the all-powerful state
rather than, as it is now perceived, a substantial expansion of police power.

Finally, there is a complex of assumptions embraced by terms such as “the adversary system,”
“procedural due process,” “notice and an opportunity to be heard,” and “day in court.” Common
to them all is the notion that the alleged criminal is not merely an object to be acted upon but
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an independent entity in the process who may, if he so desires, force the operators of the process
to demonstrate to an independent authority (judge and jury) that he is guilty of the charges
against him. It is a minimal assumption. It speaks in terms of “may” rather than “must.” It
permits but does not require the accused, acting by himself or through his own agent, to play
an active role in the process. By virtue of that fact the process becomes or has the capacity to be
come a contest between, if not equals, at least independent actors. As we shall see, much of the
space between the two models is occupied by stronger or weaker notions of how this contest
is to be arranged, in what cases it is to be played, and by what rules. The crime control model
tends to de-emphasize this adversary aspect of the process; the due process model tends to
make it central. The common ground, and it is important, is the agreement that the process has,
for everyone subjected to it, at least the potentiality of becoming to some extent an adversary
struggle.

So much for common ground. There is a good deal of it, even in the narrowest view. Its
existence should not be overlooked, because it is, by definition, what permits partial resolutions
of the tension between the two models to take place. The rhetoric of the criminal process
consists largely of claims that disputed territory is “really” common ground: that, for example,
the premise of an adversary system “necessarily” embraces the appointment of counsel for
everyone accused of crime, or conversely, that the obligation to pursue persons suspected of
committing crimes “necessarily” embraces interrogation of suspects without the intervention
of counsel. We may smile indulgently at such claims; they are rhetoric, and no more. But the
form in which they are made suggests an important truth: that there is a common ground of
value assumption about the criminal process that makes continued discourse about its problems
possible.

4. THE CRIME CONTROL MODEL

The “crime control” model is chiefly concerned with repressing criminal conduct. To achieve
this goal, this model places a premium on efficiency at every stage of the process, from the
screening of suspects, to determining guilt and the sentencing of offenders.

Efficiency is optimised through an administrative and managerial approach. Informal fact

finding procedures that are controlled by police and prosecutors are favoured. As a result, police
should be conferred broad and largely unfettered discretion to detain, search and interrogate
suspects, so they can most efficiently separate the innocent from the guilty as early in the

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process as possible. Once they have done so, the system should move the undoubtedly guilty
individuals who remain as quickly as possible towards conviction and punishment. Pre-trial
release should be rare, as it only serves to discourage the timely resolution of charges by guilty
defendants. It is this unceasing focus on efficiency in the processing of the guilty that makes
the assembly line metaphor an apt descriptor of the crime control model.

The emphasis on efficiency in convicting and punishing the guilty has a number of other
consequences as well. One such effect is that illegally or unconstitutionally evidence obtained
should always be admissible. The search for truth should take precedence over concerns about
the manner in which evidence was acquired. Under the crime control model, the criminal
process is viewed as an inappropriate forum for identifying and remedying police and
prosecutorial misconduct. Criminal trials should not get bogged down with such collateral
matters and should instead focus on convicting and punishing the guilty.

Another consequence is that whenever possible criminal cases should be resolved by way of
guilty pleas thereby avoiding wasteful and needlessly time consuming trials. Remember, under
the crime control model, the innocent are supposed to have been screened out of the criminal
process relatively early on by police or, failing that, by prosecutors.

On this view, although the potential for appellate review is necessary, it is only marginally so.
In general, appeals should be discouraged. After conviction the emphasis should be on swift
punishment, not review. Appeals should therefore be restricted to correcting those occasional
slips where the trier of fact makes a plain error about factual guilt or makes some kind of
procedural mistake so gross as to seriously undermine the reliability of the verdict. Justice
Learned Hand, who penned the following warning nearly 90 years ago, effectively captures the
sentiment that informs the crime control model: “Our dangers do not lie in too little tenderness
to the accused. Our procedure has been always haunted by the ghost of the innocent man
convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery
sentiment that obstructs, delays, and defeats the prosecution of crime.”

4.1 MURDER IN THE GYM: CRIME CONTROL MODEL EXAMPLE

Imagine working out at the local gym, and a man starts shooting people. This man has no mask
on so he is easy to identify. People call 911 and police promptly respond and can arrest the
shooter within minutes. Under the crime control model, the police should not have to worry
too much about how evidence gets collected and expanded. Investigative, arrest, and search

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powers would be considered necessary. A crime control model would see this as a slam dunk
and no need to waste time or money by ensuring due process rights. If there were any legal
technicalities, such as warrantless searches of the suspects home, it would obstruct the police
from effectively controlling crime. Effective use of time would be to immediately punish,
especially since the gym had cameras and the man did not attempt to hide his identity. Any risk
of violating individual liberties would be considered secondary over the need to protect and
ensure the safety of the community in this model. Additionally, the criminal justice system is
responsible for ensuring victim’s rights, especially helping provide justice for those murdered
at the gym.

The due process model focuses on having a just and fair criminal justice system for all and
a system that does not infringe upon constitutional rights. Further, this model would argue
that the system should be more like an ‘obstacle course,’ rather than an ‘assembly line.’ The
protection of individual rights and freedoms is of utmost importance and has often be aligned
more with a liberal perspective.

5. THE DUE PROCESS MODEL

The “due process” model is not simply the converse of the crime control model. For example,
the due process model does not deny the social desirability of repressing crime. It approaches
that goal, however, with an emphasis on a set of values that differs substantially from those that
populate the crime control model.

Unlike the crime control model, which emphasises efficiency and places great faith in police
officers and prosecutors, the due process model is informed by considerable scepticism. First,
there is scepticism regarding the utility of the criminal sanction as an instrument for social
control. Next, there is scepticism regarding the effectiveness of informal fact finding procedures
and the supposed infallibility of official actors within the criminal justice system. The result is
a strong preference for procedures that are both adversarial and judicial in their structure.

Under the due process model, the individual who comes up against the apparatus of the
criminal justice system is seen as vulnerable and in need of protection from the excesses of
those responsible for investigating and prosecuting crime. On this view, the potential for abuse
of official power is a pervasive part of the criminal process, beginning out on the street at the
point of first contact between police and suspect, continuing back at the station house and

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persisting right into the courtroom where the criminal accusation is tried.

The scepticism of the due process model is constant and informs a fear that the potential for
wrongful convictions is ever present. The only perceived antidote for this danger is scrupulously
fair procedures. In contrast to the preoccupation with efficiency that animates the crime control
model, the due process model is obsessed with quality control.

Quality control is achieved by strict adherence to legal rules and procedures that serve to
control the exercise of discretion by official actors within the criminal process, including police
officers, prosecutors and judges. Hence, the obstacle course metaphor.

Under the due process model, ‘the means’ of the criminal process matter just as much as ‘the
ends’. ‘Legal guilt’ and ‘factual guilt’ are therefore equally important concerns. Consequently it
is not enough to show that an accused person committed the crime charged; it is also necessary
to establish that the process followed in acquiring the evidence and trying the allegation was
procedurally sound.

The focus on fair process means that the criminal trial is seen as an appropriate forum to
pursue claims of official malfeasance against police and prosecutors for their handling of
an investigation or prosecution. A sensible remedy for such mis- conduct is the exclusion
of any evidence that was illegally or unconstitutionally obtained or, in more extreme cases,
the dismissal of charges. In addition, because police misconduct does not necessarily lead to
criminal charges, other remedies are also required, including tort, internal discipline and robust
civilian oversight.

Under the due process model, trials are not perceived as an undesirable burden. Rather, they are
seen as the logical and proper culmination of the criminal process. In contrast, the resolution
of cases by means of guilty pleas is frowned on because of two concerns. First, this sort of
informal resolution will mean that procedural irregularities will escape notice and remedy. In
addition, an innocent individual might plead guilty to obtain some advantage, for example
timely resolution and/or a reduced sentence. Given these dangers, guilty pleas should be rare
and be subject to safeguards to ensure that the accused is acting in a voluntary and informed
manner.

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Scepticism also animates the appellate procedures contemplated by the due process model.
Convicted defendants should have easy access to appellate relief, including the assistance
of counsel on appeal without regard to financial resources. Given the fallibility of everyone
involved in the criminal process, including trial courts, appellate courts must possess broad
remedial authority to not only correct factual errors, but to vindicate procedural protections.
If we were to choose an epigraph for the due process model it would be the oft quoted claim
by Justice Felix Frankfurter that: ‘The history of liberty is the history of the observance of
procedural safeguards.’.

5.1 MURDER IN THE GYM: DUE PROCESS MODEL EXAMPLE

Back to the gym murder, the due process model would want to see all the formalised legal
practices afforded to this case in order to hold him accountable for the shooting. If this man
did not receive fair and equitable treatment, then the fear is this can happen to other cases and
offenders. Therefore, due process wants the system to move through all the stages to avoid
mistakes and ensure the rights of all suspects and defendants. If the man in the gym pled not
guilty due to the reason of insanity, then he can ask for a jury trial to determine whether he is
legally insane. The courts would then try the case and may present evidence to a jury, ultimately
deciding his fate. The goal is not to be quick, but to be thorough. Because the Bill of Rights
protects the defendant’s rights, the criminal justice system should concentrate on those rights
over the victim’s rights, which are not listed. Additionally, limiting police power would be seen
as positive to prevent oppressing individuals and stepping on rights. The rules, procedures,
and guidelines embedded in the Constitution should be the framework of the criminal justice
system and controlling crime would be secondary. Guilt would get established on the facts
and if the government legally followed the correct procedures. If the police searched the gym
shooters home without a warrant and took evidence then that evidence should be inadmissible,
even if that means they cannot win the case.

6. CRIME CONTROL V. DUE PROCESS: THE

COMPETING INSTITUTIONS OF CRIME CONTROL AND
DUE PROCESS

It will be remembered that Packer was not positing his models in the abstract. Rather, his
construction of each was laid against the backdrop of the American legal system, its particular
legal customs, institutions and constitutional order. In sketching out the details of each model,
Packer explained that, in the main, both look to different institutions for their enabling authority.

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That is, the legitimacy of each account depends on different institutional sources.

For example, Packer explained that because ‘the crime control model is basically an affirmative
model, emphasising at every turn the existence and exercise of official powers, its validating
authority is ultimately legislative’. This is no small point. On this view, since the agents of
crime control (that is, police officers and prosecutors) derive their power primarily from the
legislature, its outputs will invariably be aimed at enabling and legitimising their crime control
functions.

In contrast, the values that inform the due process account originate in the Constitution and are
vindicated by the courts. As Packer explained, ‘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 supra-legislative law, to the law of the
Constitution’. It is ultimately the courts that are charged with the responsibility of interpreting
the Constitution’s guarantees and vindicating individual rights in specific cases.

Under Packer’s theory, legislatures and the courts play importantly different, and even
antagonistic roles. The former empower state actors with the authority they require to engage
in the competitive endeavour of ferreting out crime, apprehending wrongdoers and efficiently
bringing them to justice. In contrast, courts stand between the actors empowered by the state
and the individuals ensnared by the investigative net that they cast. They do so by promulgating
rules of fair pro- cess through their interpretation of the legal rights guarantees found in the
Constitution, and vindicating those rights in instances where state actors have failed to respect
the procedural rules. Under the due process model, it is only after an accused person’s case has
successfully made its way through the obstacle course that a court is empowered to find the
accused guilty and mete out punishment.

7. CRITIQUE OF PACKER’S MODELS

Over the intervening years, however, much of what has been written in response to Packer has
been fairly critical. Packer has come under attack not so much for what he includes in the two
models he constructs, but mainly for what he leaves out. For example, the role of victims in the
criminal process does not figure into Packer’s account. Similarly, restorative justice practices
go unmentioned in the binary model that Packer developed. In addition, drawing on empirical
research that has revealed much about the actual workings of the criminal justice system, many

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have challenged some of Packer’s key assumptions. This includes critical legal studies scholars
who question Packer’s models as unhelpful caricatures that camouflage the influence of class
and race on how the criminal process actually operates.

Packer’s account of the criminal process as involving a series of choices as between two bipolar
models has been subject to ever increasing criticism over the last eight decades. Although the
perspective of critics has varied, the complaints reflect a growing consensus that Packer’s
models are inadequate.

7.1 THE EMPIRICAL CHALLENGE

Although writing in the early 1960s, Packer appreciated that empiricism was beginning to
challenge the view – dominant until then – that the criminal process was fairly described in
the formal legal rules that govern the apprehension, screening and trial of persons suspected
of crime. Packer acknowledged that the criminal process ‘consists at least as importantly of
patterns of official activity that correspond only in the roughest kind of way to the prescriptions
of procedural rules’. At the time, however, empirical research examining the criminal process
was just getting underway. Packer’s focus was therefore rather understandably on the formal
rules, and how those rules would be differently constituted under the competing models he
describes.

Since Packer developed his models, there has been a virtual explosion of research empirically
examining how close the resemblance actually is between the formal legal rules and the realities
of criminal justice practices. It has been revealed that that low-visibility discretionary decision-
making pervaded every aspect of the criminal justice system, or in other words, that a great
deal of official authority was exercised well beyond the reach of any formal rules.

Exposing the extent to which there is deviation from the law’s formal demands is no easy
task. Unfortunately, many parts of the system are not at all transparent, which means that
‘short cuts, deviations and outright rule violations’ can too often escape detection and therefore
meaningful remedy.

From the very beginning, a major focus of empirical study in the criminal justice system was
on the police, especially their detention, search and arrest practices. While studying how police
behave in legally grey areas, the inherent potential for abuse in the myriad of low visibility
discretionary decisions made by police was exposed.

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Richard Ericson’s groundbreaking study of police patrol behaviour revealed that (just like their
American and English counterparts) Canadian police officers use legal rules quite pragmatically.
In the field, the formal limits on police authority are not usually foremost in an individual
officer’s mind. Much more important are the informal rules of police occupational culture. The
law is often little more than a ‘residual resource’, deployed after other methods of resolving a
situation have failed. At other times, it is used as an after-the-fact justification where proactive
policing, sometimes driven by oblique considerations like race or class, fortuitously leads to
the discovery of evidence.

In short, the empirical research suggests that legal rules alone will often have limited effect in
controlling abuses of police powers.

7.2 CRITICAL LEGAL STUDIES: DUE PROCESS IS FOR CRIME CONTROL

Seizing on the empirical research, some critical legal studies scholars have hypothesised that
official deviation is no accident. They contend that both courts and legislatures create rules and
procedures that are deliberately elastic, providing official actors with considerable discretion
that is largely immune from meaningful scrutiny. On this view, the legal rules are little more
than cover for what in practice is mostly unchecked power. In other words, they contend that
‘due process is for crime control’.

7.3 VICTIMS’ RIGHTS

Packer’s binary model has also been criticised for conceiving of the criminal process as
involving a struggle between the state and the criminal suspect/accused. On Packer’s account,
victims barely merit mention. This omission has not escaped notice.

The historic alienation of victims by the criminal process is now widely acknowledged. A
number of scholars have chronicled the profound unfairness occasioned by this historic injustice
and have advocated in favour of a vision of the criminal process that places the interests of
victims on equal footing with concerns about crime control and due process. In practical terms,
advocacy groups have successfully pushed for protection of victims’ interests in the criminal
process, including informational and participatory rights.

Kent roach observes that in recent years the interests of victims have often been co-opted by
politicians anxious to score easy political points with an electorate clamouring for law and
order. The result, he argues, is the ‘criminalisation of politics’, a phenomenon that promotes

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‘the power of the traditional agents of crime control – legislatures, police, and prosecutors –
while not necessarily empowering crime victims and potential victims’. Exploited in this way,
victims’ rights are put to work for crime control. As a result, Roach advocates for a new ‘non-
punitive’ model of victims’ rights, which moves beyond past struggles between due process
and crime control and looks towards a ‘more holistic integration of criminal justice with social,
political, cultural and economic justice’. In other words, Roach favours a vision of victims’
rights imbued with the conciliatory aims of restorative justice.

7.4 RESTORATIVE JUSTICE

Arguably, the most ambitious challenge to Packer’s bipolar account has come from proponents
of restorative justice. They reject Packer’s claim that the criminal process inevitably entails ‘a
struggle from start to finish’. That idea is at the foundation of Packer’s theory of a system in
perpetual conflict between two irreconcilable poles, with crime control and due process locked
in an intractable struggle.

Proponents of restorative justice seek a wholesale transformation of our existing criminal justice
practices. They favour a move away from the current emphasis on competing legal interests
that are negotiated by professional justice system participants who are preoccupied with ideas
of retribution, for example deciding guilt, attributing blame and doling out punishment.

As its name implies, the restorative justice approach instead envisions a system that focuses on
restoring relationships damaged by crime including not only victims, but offenders and affected
communities. Restorative justice practices aim to bring these constituencies together and make
them whole through mutual understanding, accountability, forgiveness and compassion.

Restorative justice is said to hold great benefits for everyone affected by crime. For victims, it
offers a voice in the process, an opportunity to ask questions of the wrongdoer, to understand
the cause(s) of the offence, to play a role in deciding the outcome and a real opportunity for
reconciliation and healing. For offenders, restorative justice practices provide an opportunity to
understand the harm caused to the victim, to express remorse, make amends, seek forgiveness
and achieve reconciliation, all of which can serve as important steps on the road to rehabilitation
and eventual reintegration into the community. For communities, restorative justice practices
provide a forum for members of the community to express their concerns about crime, to
address offenders directly, to reaffirm community values, to recognise and redress underlying
causes of crime, to lay the groundwork for reintegrating the offender and take important steps

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towards building a safe and peaceful community.
Despite the optimism of its supporters, restorative justice also has its detractors. Perhaps the
most searing criticism is that its goals are simply unrealistic. Especially for crimes that occasion
serious harm, its Utopian vision seems to run up against the reality that for many victims and
their families, retribution equals justice.

7.5 IN PACKER’S DEFENCE

Criticism of Packer’s theory often overlooks an important aspect of his account. As Andrew
Ashworth reminds us, Packer’s models are ‘not designed to be prescriptive either generally or
specifically’. Packer quite deliberately distinguished between what he characterised as the ‘is’
and the ‘ought’ of the criminal process. His models were intended neither to describe nor to
prescribe.

Packer’s aim was to provide us with a vocabulary for labelling and thereby better understanding
the choices that are perpetually being made within the criminal process. These are choices that
Packer plotted along a spectrum of values (or ideological commitments), with crime control at
one end and due process at the opposite pole. Packer’s models were therefore not intended as
complete abstractions. They were meant to assist in better understanding the actual criminal
process.

Even more importantly, it should be remembered that Packer was writing at a time when
empirical research into the criminal process was still in its relative infancy. During the
intervening years, the considerable rift between the law on the books and the reality of how the
criminal justice system often operates has since been more fully revealed. An impressive body
of empirical research has now served to expose the substantial divide between the law’s formal
demands and the actual workings of the criminal process.

In addition, it is important to remember the context in which Packer was theorising. As Packer
explained, he was ‘not postulating a criminal process that operates in any kind of society at
all, but rather one that operates within the framework of contemporary American society’. His
starting point was therefore the American legal system, with its legal traditions, institutions
and Constitution. Not surprisingly, however, Packer’s theory has also proven useful in better
understanding the criminal process in other common law countries.

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 8. MODELS BASED OFF PACKER’S WORK

Over the years, several notable models have been based off Packer’s work. A few of them find
mention here. Kenneth E. Scott’s “Two Models of the Civil Process” published in the Stanford
Law Review in 1975 seeks to replicate Packer’s work in a civil context. The most notable of
these works is the “Four Models of the Criminal Process” by Kent Roach which was published
in 1999 and builds upon Packer’s work. Similarly, “Ideology in Criminal Procedure or A Third
“Model” of the Criminal Process” authored by John Griffiths was published in the Yale Law
Journal in 1970.

9. CONCLUSION

Two models of the criminal process will let us perceive the normative antinomy at the heart
of the criminal law. These models are not labeled “is” and “ought”, nor are they to be taken
in that sense. Rather, they represent an attempt to abstract two separate value systems that
compete for priority in the operation of the criminal process. Neither is presented as either
corresponding to reality or representing ideal to the exclusion of the other. The two models
merely afford a convenient way to talk about the operation of a process whose day-to-day
functioning involves a constant series of minute adjustments between the competing demands
of two value systems and whose normative future likewise involves a series of resolutions of
tensions between competing claims.

There is a risk in an enterprise of this sort that is latent in any attempt to polarise. It is, simply,
that values are too various to be pinned down to yes-or-no answers. The models are distortions
of reality. And, since they are normative in character, there is a danger of seeing one or the
other as “good” or “bad”. The reader will have his preferences, as I do, but we should not be
so rigid as to demand consistently polarised answers to the range of questions posed in the
criminal process. The weighty questions of public policy that inhere in any attempt to discern
where on the spectrum of normative choice the “right” answer lies are beyond the scope of the
present inquiry. The attempt here is primarily to clarify the terms of discussion by isolating the
assumptions that underlie competing policy claims and examining the conclusions that those
claims, if fully accepted, would lead to.

Caution is necessary when comparing competing theories with Packer’s models. Packer neither
intended for his models to describe nor to prescribe the workings of the criminal process. Unlike
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competing theories, there is nothing aspirational in Packer’s account; rather, his object was to
develop a vocabulary by which to better label and thereby understand actual developments.
As a result, to the extent that Packer did not anticipate nor account for the rise of the victims’
rights movement or the ascent of restorative justice reforms, he cannot in fairness be faulted.
After all, he did not have a crystal ball.

The initial hypothesis therefore stands corrected.

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 10. BIBLIOGRAPHY

• Herbert L. Packer, “Two Models of the Criminal Process” (1964).

• Herbert L. Packer, “The Limits of the Criminal Sanction” (1968).
• James Stribopoulos, “Packer’s Blind Spot: Low Visibility Encounters and the Limits of Due
Process versus Crime Control”.
• Paul Bator, “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners”.
• John Griffiths, “Ideology in Criminal Procedure or A Third “Model” of the Criminal Process”.
• Kent Roach, “Four Models of the Criminal Process”.

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