Packer’s Crime Control Model and the Nature of American Justice
By Kara Steele
Packer’s Crime Control Model and the Nature of American Justice
by: Kara Steele
The daily operations of the American criminal justice system, particularly the police, courts and corrections, are strongly correlated with Herbert Packer’s notion of crime control. Informal processes are subject to external social forces, including politics, media, race, class and gender, because of the structure of the open system that exists today. This intersection of the criminal justice system and outside sources shapes the nature and organization of American justice.
Packer’s crime control model is a decision-making process that privileges the interests of society and the community over individual rights in order to preserve public safety. Its goal is to repress and control crime while valuing speed and efficiency, factual guilt, shortcuts, uniformity, finality and informality. The justification for this model is that in certain instances, threats to public safety should take precedence over individual rights because a breakdown in public order is at stake. The key stage of this model is the investigation, which makes the police and prosecutors the key actors. The crime control model bases its decisions on factual guilt and accepts a higher rate of error, which is seen as the price of effectively protecting society.
In order to better understand the inner workings of the crime control model, Packer uses the metaphor of an assembly line. The criminal travels through the justice system and stops at each consecutive state, including pre-arrest investigation, arrest, post-arrest investigation, preparation for trial, trial or entry of plea, conviction and disposition. Each of these states involves a series of routine operations whose success is measured primarily by their tendency to pass the case along to a successful conclusion. This metaphor is showcased through the uniformity, finality and efficiency as seen in the stages of the criminal justice process, from crime, arrest and booking to first appearance, preliminary hearing, arraignment, trial and sentencing. The criminal justice system is largely focused not upon justice, but on speedy case processing.
In contrast, the due process model is a decision-making process that privileges individual rights and civil liberties over society. Its goal is to repress crime with an emphasis on ensuring accuracy, protecting the individual and securing careful fact-finding. According to this argument, the exercise of full due process of the law must be preserved because civil rights are embedded in the values of democracy. If full due process is not granted, a breakdown in public order in which the state loses credibility, and the possible disappearance of human freedom may occur. The values inherent in this model include consistency, accuracy, individual rights, formality and a low demand for finality. The main stage is the trial, which makes the jury, judge and defense attorneys the key actors. This process emphasizes legal guilt and allows the guilty to go free in order to preserve the innocent. Packer compares this model to an obstacle course where each successive stage is designed to present impediments to carrying the accused any further along in the process.
The daily operations of police and street-level bureaucrats utilize substantive justice, or rough justice, which relies on informal arrangements and patterns of cooperation within and across agencies to dispose of a case speedily. Substantive justice is centered upon plea bargaining, which does not fully exercise one’s due process rights. Many police use and encourage shortcuts as coping strategies for dealing with inadequate resources. Another coping mechanism used by police are simplifications, or symbolic constructs in which individuals order their perceptions to make perceived threats easier to manage, such as labeling a black man as a symbolic assailant.
Black people, especially young black males, tend to have much worse experiences with the police than white Americans, according to Leitzel’s “Race and Policing.” Criminal profiles compiled by the police use race as one factor in identifying potential criminals -- in practice, race is often utilized as a crucial element as to whether a traffic stop is triggered, or as a determinant of how much violence should be used in a particular situation. Race-based policing is counterproductive. Racial profiling leads to more crime because of hostility, unwillingness to report crime and lack of cooperation by minorities. This form of policing resembles the crime control model in that simplifications are used in order to repress crime in a speedy, uniformed way.
The outcomes of the shortcuts used by the police are often colored by discriminatory stereotypes that create self-fulfilling prophecies with regard to the criminal, are informed by pre-existing cultural stereotypes and rely on partial empirical fact or anecdote. So, the system often lacks the due process values of accuracy and individual rights, and prompts an unfair amount of discrimination to minorities.
As seen through shortcuts and stereotypes that surround police, crime control is only a small percentage of what police do; they are actually social workers who attempt to maintain public order. So, the function of the police is built on a fundamental contradiction between the perception and reality of their mandate. But police associate themselves purely with the repression of crime as a means to control crime in an efficient, timely manner, which makes them more consistent with Packer’s crime control model.
Police characteristics are shaped by the need to establish one’s authority, the ever-present threat of danger and crime control’s value of efficiency. This working personality develops through informal socialization within the police force. Occupational elements of danger and authority shape police’s cognitive lenses. Some of the characteristics that emerge include authoritarian, hostile, efficient and prejudiced. The prejudiced views often present in the mindset of police result in the development of stereotypical profiles of likely criminals that, in turn, often lead to wrongful convictions.
According to Ronald Huff’s “Convicted But Innocent,” factors that lead to wrongful convictions include eyewitness error, overzealous prosecution and policing, moral panics, inadequacy of counsel, prior criminal record and false confession. The belief that it is better to convict the innocent than to let the guilty go free ties in with the crime control model’s perspective on guilt, and has also led to high prison populations.
The United States is the first nation to have imprisonment exceed two million people. Black men are not the only group who possess a large portion of the prison population; women compose the most rapidly growing demographic group to be imprisoned. Over half of the women in jail are African American, have not finished high school and experienced some form of sexual abuse prior to their incarceration. Ninety percent of imprisoned females are single mothers, and 95 percent entered prison with incomes below $10,000. It is evident that the external forces of race, class and gender come into play when prison populations are considered.
As seen in Gresham Syke’s “The Society of Captives,” the pains of imprisonment include deprivation of liberty, goods and services, heterosexual relations, autonomy and security. The process of coping mechanisms in prison takes the form through argot roles, or prison slang. Unfortunately, prison, especially maximum security institutions, serves to be a self-fulfilling prophecy in that if one has weak or no gang affiliation when they are convicted, they are often converted to full membership while behind bars. Also, super max prisons, which are designed to house the worst of the worst inmates, are seen as evidence of a move toward crime control. These institutions are criticized of violating 8th Amendment rights and of allowing the absence of full due process.
In his article entitled “The Process is the Punishment,” Malcolm Feeley’s findings on his observation of lower courts in New Haven, Connecticut, were discussed. The criminals, who were mainly lower class, minorities and repeat offenders, were overly eager to speed through the system because they saw the process itself as a punishment. Poor defendants suffered because of lack of money and resources, and the impact of the process on their family and employment. Thus, criminals had an overall negative experience with the system and developed a cynical perspective about justice.
Feeley said these courts are consistent with the crime control model in that they value public safety over individual rights, speed and efficiency, shortcuts and finality. He discovered that often, low socioeconomic status and race weigh in on who is punished -- poor minorities are more likely to be convicted because of indirect costs of simple case processing. Also, an informal system of substantive justice predominates the court and its central mechanism is plea bargaining. Statistics show that few people ever invoke their right to trial -- 90-98% of cases are plea bargained. The criminal justice actors want to halt cases from going to trial in order to ensure speediness and finality.
One of these actors who wishes to speed the case along is the defense counsel. As examined through Abraham Blumberg’s “The Practice of Law as a Confidence Game,” the defense counsel works in conjunction with the prosecutor and judge to process the case through the system. The defense counsel aligns himself closely with the courtroom workgroup, not his client, which makes him a double agent -- defense attorneys work to the state’s advantage by trying to get the case to conviction. By cooperating with the courtroom workgroup to issue a guilty plea in regard to their client, defense attorneys are doing the reverse of their mandate for the sake of the crime control values of speed and finality, while ignoring the due process values of accuracy and reliability.
Prosecutors, too, are socialized via the courtroom workgroup to speed cases along by adopting plea bargaining methods. Milton Heaumann’s “Adapting to Plea Bargaining” discusses the dilemma that faces new prosecutors -- law school theory versus plea bargaining reality. At first, new prosecutors want every case to go to trial and they are hesitant to accept plea bargains, but they inevitably practice plea bargaining because of the socialization of the courtroom workgroup, which causes them to gradually drift into the practice. Plea bargaining evades the trial process, involves the defendant’s waiving of his or her appellate rights, ensures speedy case processing and promises certainty, all of which are valued in the crime control model. Prosecutors come to realize that if fewer cases were plea bargained, a backlog of cases to be disposed of would quickly clog calendars and slow the system. So, the crime control value of shortcuts and routines is stressed to new prosecutors, who eventually move away from due process thoughts.
The open system that exists in America today is shaped by larger forces in society. According to Newsweek’s “The Truth Behind the Pillars,” no court can be insulated from politics because the interpretation of the law is subjective, and is thus living and subject to discretion. Supreme Court justices are able to make decisions based on their opinions rather than voting for popularity, because they have the luxury of being appointed for life. So, the institution bases their decisions on personal and political preferences because of the subjectivity of the law and the impossibility for justices to fully separate themselves from their values and biases.
Another influence on the open system is moral panics, which occur when a person or group of people emerge to become defined as a threat to societal values and interests. The interrelationship between the media, politicians and the public feed into a cycle of fear and cause an increase in the targeting and incarcerating of the underclass and minorities. The immediacy factor that is present in the crime control model is seen during moral panics via police intervention -- higher authorities are called upon when “something that ought not to be happening and about which someone had better do something now” is taking place, according Ted Chircos' "The Politics of Punishing."
Chircos’ article said while drug abuse and violence have been substantial and enduring problems in many inner city neighborhoods for decades, moral panics created the impression of a sudden and escalating firestorm spreading throughout all parts of society. This panic fostered the belief that youth outside the urban underclass were increasing their use of cocaine, although rates of use were dropping. These images communicate fear, anxiety and a distorted sense of the actual crime problem. The underclass and minorities were believed to be poisoning rich white children, which caused the public outcry.
According to Ray Surette's "Media, Crime and Criminal Justice," the media, as the knowledge distributor, formulates a dominant construction of the world, which citizens usually believe. This construction challenges due process values in that these portrayals are not always accurate or reliable, and the individual rights of the poor and minorities are often not ranked as high as the rights of white upper-class citizens.
The dominant construction of crime and justice reality via the media steers public policy, Surette’s article explained. The criminal justice system is like an assembly line, Surette wrote, along which defendants should be processed as quickly and efficiently as possible, which agrees with the crime control model.
The media’s constant coverage of black men doing bad things leads to fear, which fosters the ungrounded amount of arrests that minorities face on a day-to-day basis. Blatant prejudice and racial discrimination continue to infect the criminal justice system, as seen in murder and drug convictions. Defendants charged with killing white victims are at least four times, and as much as eight times, more likely to receive a death sentence than those charged with killing black victims in otherwise similar cases, according to Bennett Gershman’s “Themes of Injustice.” African Americans represent 12 percent of the population, 14 percent of drug users, and an astounding 75 percent of prison sentences for drug possession because minorities in inner city neighborhoods are more likely to be targeted, even though the primary drug user in the United States is a young, white, middle-class male. Black males have a one in three chance of serving time in their lifetime, whereas the ratio increases to a six in 100 chance for white males. The disproportionate incarceration of assumed violent blacks is seen as a necessary step in providing public order and safety, according to the crime control model.
The media also played a huge part in the portrayal of death row inmate Robert Harris. Although Craig Haney, who interviewed and got to know the man, described him as a perceptive, insightful, sensitive person, the local media prompted the public’s negative view of him, and his abusive social history was never heard. Harris was reduced to the status of an object and was disposed of, following along with the assembly line metaphor of the crime control model.
A spokesman of the San Quentin jail, the institution that housed Harris, took pride in the prison’s quick response and the speed with which the staff acted in Harris’ case, as though the inner workings of a machine were being described. His comments reflected the assembly line metaphor of crime control, as well as values of speed and efficiency. Although over 1,000 pages were written in regard to Harris’ disturbing past, they were never taken into account, so his best interests were not fulfilled.
Similarly, in the 1993 case of Herrera versus Collins, the former was executed even though new evidence of innocence was readily available. This case restricted the grounds for appeal and aligned itself with the value of finality over due process rights.
Society is not going to receive a complex view of the crime committed or the offender from the media because execution requires dehumanization. But it is fair to say that a disproportional number of minorities make up the death row population -- 66 percent of children put on death row are minorities, 80 percent of federal death row is comprised of African Americans and, of the 3,718 offenders on death row in July 2002, 9 percent were Hispanic and 43 percent were African American, Haney said.
The determinate sentencing model is the contemporary model of punishment in the United States. Its philosophy is grounded in retribution, incapacitation and deterrence, and it pronounces the prosecutor as the most powerful actor in the courtroom workgroup. The policies of this sentencing model include reduction of judicial discretion by the use of fixed, mandatory sentencing; abolition of parole so outdates are not changed; and the establishment of sentencing commissions. This model aligns itself with crime control by promising fairness through equity -- a specific felony deserves certain time, and individual aspects are not taken into account.
The nature of the criminal justice system sharply contrasts with societal beliefs and media portrayals. The ideals of the justice system do not exist in regard to police, courts and corrections because of crime control’s emphasis on speediness, finality and the assembly line metaphor. Many times, police don’t make proper arrests or complete follow-up procedures because these burdens will result in mounds of paper work, which would slow down the speed of case processing. The courtroom workgroup, which includes the defense attorney, works together to move the case along to conviction in order to ensure finality. Various forms of corrections strip criminals of their due process rights and treat them as if they are a number, sometimes not deserving of humane treatment. Also, the existence of the open system allows influences of the media, race, class, politics and gender to have an affect on the daily operations of the criminal justice system.
In order for the American justice system to live up to its constitutionally stated right of “liberty and justice for all,” drastic changes must occur in the media’s portrayal of minorities, and a move toward community policing and due process initiatives must be introduced.
© Kara Steele