due process model essay

1.8. The Crime Control and Due Process Models

Shanell Sanchez

Crime Control and Due Process Model 

The criminal justice system can be quite complicated, especially in the attempt to punish offenders for wrongs committed. Society expects the system to be efficient and quick, but the protection of individual rights and justice fairly delivered. Ultimately, the balance of these goals is ideal, but it can be challenging to control crime and quickly punish offenders, while also ensuring our constitutional rights are not infringed upon while delivering justice.

In the 1960s, legal scholar Herbert L. Packer created models to describe exceeding expectations of the criminal justice system. These two models can be competing ideologies in criminal justice, but we will discuss how these models can be merged or balanced to work together. The first tension between these models is often the values they place as most important in the criminal justice system, the crime control model and the due process model. [1]

The crime control model focuses on having an efficient system, with the most important function being to suppress and control crime to ensure that society is safe and there is public order. Under this model, controlling crime is more important to individual freedom. This model is a more conservative perspective. In order to protect society and make sure individuals feel free from the threat of crime, the crime control model would advocate for swift and severe punishment for offenders. Under this model, the justice process may resemble prosecutors charge an ‘assembly-line’: law enforcement suspects apprehend suspects; the courts determine guilt; and guilty people receive appropriate, and severe, punishments through the correctional system. [2] The crime control model may be more likely to take a plea bargain because trials may take too much time and slow down the process.

Murder in the Gym: Crime Control Model Example by Dr. Sanchez

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 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. [3]

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. [4]

Murder in the Gym: Due Process Model by Dr. Sanchez

Back to the gym murder, the due process model would want to see all the formalized 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 shooter’s home without a warrant and took evidence then that evidence should be inadmissible, even if that means they cannot win the case. [5]

There are several pros and cons to both models; however, there are certain groups and individuals that side with one more often than the other. The notion that these models may fall along political lines is often based on previous court decisions, as well as campaign approaches in the U.S. The crime control model is used when promoting policies that allow the system to get tough, expand police powers, change sentencing practices such as creating “Three Strikes,” and more. The due process model may promote policies that require the system to focus on individual rights. These rights may include requiring police to inform people under arrest that they do not have to answer questions with an attorney ( Miranda v. Arizona ), providing all defendants with an attorney ( Gideon v. Wainwright ), or shutting down private prisons that often abuse the rights of inmates.

To state that crime control is purely conservative and due process is purely liberal would be too simplistic, but to recognize that the policies are a reflection of our current political climate is relevant. If Americans are fearful of crime, and Gallup polls suggest they are, politicians may propose policies that focus on controlling crime. However, if polls suggest police may have too many powers and that can lead to abuse, then politicians may propose policies that limit their powers such as requiring warrants to obtain drugs. [6] Again, this may reflect society, a reflection of a part of society, or the interests of a political party or specific politician.

Discuss what the primary goal of the criminal justice system should be: to control crime, ensure due process, or both? Explain how this opinion may get influenced by individual factors, such as age, gender/sex, race/ethnicity, economic situation, a country born in, and more. Could goals change with more education given about criminal justice? If so, make an argument in favor of education. If not, make an argument against educating the public on criminal justice.

• Packer, H. (1964). Two models of the criminal process. University of Pennsylvania Law Review, 113 (1) ↵
• Roach, K. (1999). Four models of the criminal process. Journal of Criminal Law and Criminology, 89 (2), 671-716. ↵
• Packer, H. (1964). Two models of the criminal process, 113 U. PA. L. Rev. 1; Yerkes, M. (1969). The limits of the criminal sanction, by Herbert L. Packer (1968).  Loyola of Los Angeles Law Review  176, 2 (1). ↵
• Yerkes, M. (1969). The limits of the criminal sanction, by Herbert L. Packer (1968).  Loyola of Los Angeles Law Review  176, 2 (1).  ↵
• Yerkes, M. (1969). The limits of the criminal sanction, by Herbert L. Packer (1968). Loyola of Los Angeles Law Review  176, 2 (1). ↵
• Davis, A. (2016). In the U.S., concern about crime climbs to a 15-year high. Gallup Poll. ↵

1.8. The Crime Control and Due Process Models Copyright © 2019 by Shanell Sanchez is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

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Due Legal Process in the United States Essay (Critical Writing)

Introduction, reasonable suspicion and probable cause, exceptions to warrant requirement, right to counsel.

Due process is legal principle that ensures protection of civil rights against violation by the government in order to guarantee justice, fairness, and liberty in the application of the law. The due process of the law is fundamental in law application since at some instances, government can act in contravention to the law process thus violating an individual’s rights. The United States amendments provide for the basic rights of citizens and further protect them against unfair treatment by the government.

According to Fourteenth Amendment of United States, “no State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law,” (Garlinger, 2009, p. 32). This amendment gives United States citizens immunity against undue processes of the law by the government. This essay explores the due process of law regarding the Fourth and the Sixth Amendment of the United States.

The fourth Amendment in the United States constitution provides rights to citizen not to have unreasonable searches of their premises and arrests without warrant. However, the police too have right to conduct warrantless searches under exigent circumstances. Exigent circumstances are situations that require immediate and expedient action of law enforcement by the police, for example, in face of evidence destruction or planning of crime.

Reasonable suspicion and probable cause are two approaches that the police use in determining exigent circumstances. Reasonable suspicion requires the police to use their judgment in deciding the exigent circumstances without any tangible evidence so that they can conduct warrantless searches. On the other hand, probable cause demands the police to have tangible evidence of exigent circumstances before conducting warrantless searches.

Sonntag argues that, ” reasonable suspicion as opposed to a probable cause requirement strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries” (2003, p. 635). Probable cause limits police investigation and gives a chance to the suspect to escape or destroy important evidence.

For example, an exigent circumstance where the police suspect destruction of criminal evidence demands the police to either use probable cause or reasonable suspicion approach. Exigent circumstances based on probable cause exist when “facts and circumstances within the officer’s knowledge are sufficient to warrant a prudent person, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense” (Sonntag, 2003, p. 651).

The requirement of facts and concrete reasons when determining exigent circumstances are quite strict for the police to conduct warrantless searches and arrests. Reasonable suspicion approach gives the police leeway to conduct warrantless searches and arrests contrary to the United States Fourth Amendment because the police can determine exigent circumstances based on mere speculation.

Under circumstances where the police officers do not have enough evidence to determine exigent circumstances by probable cause approach, and the matter in question is of great public interest, then, reasonable suspicion can warrant searches or arrests. Davidson describes reasonable suspicion as “a particularized and objective basis for suspecting the person stopped of criminal activity, and probable cause to search as existing in the belief that contraband or evidence of a crime will be found (2006, p. 3).

The determination of reasonableness needs objective suspicion of suspects. If the police officer believes and suspects that there is an imminent criminal activity, destruction of evidence, and the criminals are aware of police tracking them, then reasonable suspicion can suffice warrantless searches or arrests. Therefore, factors surrounding exigent circumstances determine whether the police will employ probable cause or reasonable suspicion in their warrantless searches and arrests.

Although the Fourth Amendment of the United States constitution protects citizens against searches and arrests unless warranted, the Supreme Court has realized that this is not always applicable and has come up with exceptions to warrant requirement. These exceptions are exigent circumstances, searches with consent and automobile exception amongst others.

An exigent circumstance is a situation where it compels police officers to conduct warrantless searches or arrests due to danger the circumstances pose. Glenn argues that, “police officers who have established probable cause that evidence is likely to be at a certain place and do not have time to get a search warrant may conduct a warrantless search or seizure” (2007, p. 142). Due to danger an exigent circumstance poses to the police, public, or destruction of evidence, it qualifies warrantless searches or arrests of the suspects.

For instance, exigent circumstances occur when one is in great danger and needs rescue, when there is danger of evidence destruction, and when there is an impending criminal activity. Under such circumstances, there is no enough time for the police to acquire warrant and at the same time prevent the imminent danger.

Warrantless search can also occur when an individual consent to it. The condition of the consent demands that, the person giving out consent must be the owner or sharing the searched property or residence. For example, husband or wife can consent search of their bedroom but not a relative living in the same house. Automobile search is an exception of warrant requirement because automobile cannot wait for the police officer to obtain a warrant.

Warrantless searches and arrests are applicable “if a government agent has probable cause to believe the vehicle contains contraband or evidence of a crime in the time it would take to get a warrant, the car, driver and contraband or evidence could be long gone” (Harr & Hess, 2005, p. 230). For example, if a police officer has suspected a vehicle in a highway to be carrying illegal drugs, it will be a futile effort for the police to obtain a warrant first.

The fourth exception is the search incident to arrest. Police officer haves the right to search a suspect for any weapon or incriminating evidence during arrest without any warrant. For instance, a police cannot arrest a terrorist without conducting search lest there be explosives or a gun, which threatens the life of the police officer and the public.

The sixth Amendment right to counsel protects the accused during the process of prosecution by ensuring fair trial, including assistance of counsel. The right to counsel of this Amendment comes into effect during critical stages of investigation under adversarial system.

“The Supreme Court has held that the accused has the right to the assistance of counsel at all critical stages of the prosecution during which the accused is simply advised of the charges and constitutional rights” (Weiss & Wharton, 2000, p. 11). In this case, adversarial court proceedings form the critical stages in the prosecution process.

While right to counsel of the Sixth Amendment guards the suspects against undue process of prosecution, the right to counsel of the Fifth Amendment safeguards the suspect against forced self-incrimination that may occur during investigation. The former ensures due legal process of prosecution and the latter protects against self-incrimination.

Due legal process is a fundamental principle that ensures justice and fairness in the application of the law. Given that the United States Amendments are prone to many interpretations by various courts, it is imperative to apply due legal process that will enable citizens enjoy their basics rights.

As shown in the fourth Amendment, it is very subjective to state whether individuals still have the fundamental right not to have their property searched or arrested without warrant. Basing on the exceptions of the Fourth Amendment, there is no clear cut between warrant search and warrantless search because the police officers have the prerogative to determine exigent circumstances that warrant search or arrest.

Davidson, M. (2006). Probable Cause, Reasonable Suspicion, and Reasonableness

Standards in the Context of the Fourth Amendment and the Foreign Intelligence Surveillance Act. Congressional Research Service 4(6), 1-12.

Garlinger, P. (2009). United States Constitution: Fourteenth Amendment. New York University Law Review 2(4), 30-34.

Glenn, S. (2007). Exceptions to the Warrant Requirement of the Fourth Amendment. Human Rights Journal 3(2), 130-163.

Harr, S., & Hess, M. (2005). Constitutional Law and the Criminal Justice System . United States: Thomson Wadsworth.

Sonntag, G. (2003). Probable Cause, Reasonable Suspicion, or Mere Speculation?

Holding Police to a Higher Standard in Destruction of Evidence Exigency Cases. Washburn Law Journal 42(6), 629-656.

Weiss, P., & Wharton R. (2000). The Sixth Amendment Right to Counsel. The New York Journal 2(6), 1-30

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Home — Essay Samples — Law, Crime & Punishment — Due Process — Analysis Of Packer’s Crime Control Model In Contrast To Due Process

Analysis of Packer’s Crime Control Model in Contrast to Due Process

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Published: Feb 8, 2022

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