Brandon A. Perron, Board
Certified Criminal Defense Investigator
The American justice system’s need for an effective
strategy to combat crime has been debated for years. In fact, close
examination reveals that the core of the controversy and conflicting
philosophies are fundamentally liberal and conservative and thus
political in nature. Consider
the goals of the American Criminal Justice system for a moment.
The Primarily the goals can be categorized into two very distinct
missions: (1) the need to
enforce the law and maintain social order, and (2) the need to protect
people from injustice.
A cursory examination would appear to reflect that the two goals
represent a common and consistent ideology.
However, the two goals are generally considered to be in conflict
with each other. The first
goal is referred to as the crime control model and was developed by
Herbert Packer and presented to the academic world in his analysis of
the criminal justice system in the 1960’s.
This model places an emphasis and priority upon the aggressive
arrest, prosecution, and conviction of criminals.
The second goal is quite the opposite focusing upon protecting
the individual rights of the accused and is commonly referred to as the
due process model.
The political considerations are obvious.
Historically, the conservative position has generally endorsed
the crime control model with the liberal position defending and
supporting the due process model. Many
would argue that the two positions would always be in conflict with each
other forcing the American justice system to either make a choice or
remain ineffective. To some
the decision is black or white arguing that only one of the two goals
can be effectively pursued. Unfortunately,
such a perspective is a common symptom of political influence. After
all, police agencies are government entities and therefore generally
have no choice but to answer and conform to changing political will.
Consider the various methods employed to pursue the
crime control model. The argument in support of such a philosophy and
its methods is rather compelling. Proponents
endorse an all out assault upon criminal activity.
The term “War on Crime” is commonly referred to by
politicians and law enforcement as a means to identify, pursue, isolate,
and ultimately eliminate the criminal element in our society.
Such a strategy may include targeting high crime areas, increased
patrols and traffic stops, profiling, undercover sting operations,
wiretapping, surveillance, and aggressive raids and searches designed to
break the back of criminal activity. Proponents argue that certain individual rights must be
sacrificed for the common good. The positive effects of such a strategy
are obvious in that criminals and criminal activity becomes the direct
target of law enforcement. Entire
neighborhoods plagued by prostitution, drugs, and gang activity have
been cleared and made safe for law-abiding citizens.
Due to the existence of significant and visible results such
strategies are also generally popular by the citizenry and politicians. However, the “War on Crime” like all wars often results
in collateral damage. For
example, in Morgantown, West Virginia police raided the home of a
72-year-old woman based upon what the police claimed was a “bad
tip”. According to a
confidential informant, the suspect residence was a drug den cultivating
marijuana plants. However,
the aggressive raid resulted only in the recovery of 60 pepper and
Such collateral damage is often considered acceptable.
Unfortunately, collateral damage can also result in the loss of
human life. Real “war” maintains a degree of what is referred to as
“acceptable losses”. Consider
the following case in point: In Boston, Massachusetts, a drug raid by
police left a 75 year old minister dead of a heart attack.
The raid was based upon information from a paid informant,
rejected two months earlier by police as “unreliable”.
The police, prepared and expecting to encounter “four heavily
armed drug dealers and a kilogram of cocaine”, burst into the
apartment of the minister with a SWAT team.
The 75-year-old minister described as “frail” was chased into
his bedroom by police, wrestled to the floor, and handcuffed.
The minister collapsed during the struggle and died of heart
failure. Following the
incident the police learned that the informant had provided the wrong
apartment number. The
police commissioner later apologized stating that “the one tragic fact
which is clear at this time is that the minister was an innocent victim
in the continuing war on drugs.”
The two examples described here are extreme but also significant.
The strict proponents of the crime control model must ask
themselves if such incidents are “acceptable losses”?
The ancient Roman advocate Cicero made an interesting and
relevant point when he said, “the law is silent during war”.
The strengths and weaknesses of the crime control
model have been demonstrated but what of the due process model?
Should the American Justice system be focused solely upon the
fundamental freedoms and individual rights of each and every citizen?
American jurisprudence is grounded in the philosophy set forth by
Sir William Blackstone: “It is better that ten guilty escape than one
The due process model demands a careful and informed
consideration of the facts of each individual case.
According to this model, law enforcement agents must recognize
the rights of suspects during arrest, questioning, and handling.
In addition, constitutional guarantees must be considered by
judges and prosecutors during trials.
The primary mission of the due process model is to protect
innocent people from wrongful conviction.
It is doubtful that many would argue against the fact that we
must engage in significant efforts to protect those who may be falsely
accused. However, many
argue that while the due process model focuses upon the rights of the
accused it ignores the rights of victims.
The Fourth Amendment of the United States
Constitution prohibits unreasonable search and seizures stating, “The
right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue but upon probable cause, supported
by Oath or affirmation, and particularly describing the places to be searched and the persons or
things to be seized.”
law enforcement community repeatedly complains that the Fourth Amendment
limits their ability to combat crime.
Careful study reveals that the limitations upon law enforcement
actually stem from the various and never ending decisions rendered by
the courts in respect to their interpretation of the Fourth Amendment.
New interpretations may expand or further limit the power of the
police. Such changes often
cause confusion and are subject to change and new interpretation at any
time by the courts. Furthermore,
the due process model does not limit itself to the Fourth Amendment.
The police must also consider the individual rights of the
accused in respect to many of the individual rights guaranteed by the
Bill of Rights. For
example, 1) a right to be
assumed innocent until proven guilty, 2) a right against arrest without
probable cause, 3) a right against self-incrimination, 4) a right to an
attorney, and 5) a right to fair questioning by the police.
Of course this is just a small sampling of the individual rights
guaranteed by the United States Constitution and they are continually
subject to change as interpreted by the courts.
Where does it end? Do the rights of the individual outweigh the rights of the
many? Proponents of
the due process model argue that the rights of the one in fact represent
the rights of the many. However,
everyone does not always view the claims of victory by due process model
proponents as just or moral for that matter.
On March 21, 2001 the American Civil Liberties Union (ACLU)
hailed a 6-3 decision by the United States Supreme Court “holding that
pregnant women cannot be subject to warrantless, suspicionless searches
simply because they are pregnant”.
The issue in question was presented in Ferguson
V. City of Charleston, specifically related to a public hospitals
policy that pregnant women be subjected to surreptitious drug screens of
their urine, results of which were turned over to the police.
The policy resulted in the arrest of twenty-nine women.
The ACLU stated that the decision “sends a clear message that
even a conservative court is not willing to allow the serious erosion of
our basic constitutional rights in the name of the war on drugs.”
The decision in this case provided an example of the continuing
debate in respect to the due process model.
The decision rendered in Ferguson
V. City of Charleston could be considered a weakness or strength of
the due process model dependent upon your particular perspective.
We have addressed both the crime control model and
the due process model and have found significant strengths and
weaknesses inherent to both of them.
Close examination reveals that law enforcement agencies must
be careful not to allow their agencies to pursue one model with
disregard for the other. Both
appear to have potential pitfalls and dangers that could threaten both
safety and security and the individual freedoms that have made the
United States a beacon of stability and freedom throughout the world.
Liberal proponents of the due process model believe that the
crime control model is too harsh and pursues the ideology of a police
state. The arguments of the
conservative supporters of the crime control model complain that the due
process model protects the guilty at the expense of innocent law abiding
citizens. However, we must recognize that we will probably always be
confronted with ideological conflict from each end of the philosophical
and political spectrum. Considering
the various weaknesses and strengths of the two models some experts,
such as noted criminologist Frank Scmalleger, support a new approach
where “it is realistic to think of the U.S. system of justice as
representative of crime control
through due process”.
Such a philosophy provides a moderate approach that protects the
individual freedoms Americans have fought and died for and protects
society from a criminal element that is intent on doing them harm.
Frank Scmalleger argues that crime control through due process
combines the strengths of the two models while also recognizing and
avoiding the weaknesses and potential dangers to our society.
A true test of this model has been thrust upon the American
justice system. The tragic
and horrific events of the September 11, 2001 terrorist attack upon the
World Trade Center and Pentagon will force a heated and emotional
debate. Thousands of lives
have been lost in a senseless attack on United States soil.
Criminal Justice and Judicial leaders will be confronted with the
daunting task of balancing the responsibility of protecting American
citizens while also protecting the individual rights of those accused.
However, the political winds have already changed with many
Americans concerned primarily with security and safety.
This emotional shift may evolve into a philosophical change and
result in an American public willing to sacrifice a degree of individual
freedom in exchange for security and safety.
Of course, characterization of the terrorist act as an “Act of
War” will almost certainly change the rules.
It is within this context that Cicero’s words will be tested
and my inevitably haunt us.
It is impossible to know what the future holds
in respect to the American justice system.
The future is often determined not by our intentions but by the
uncontrollable events we encounter while pursuing our goals.
Criminal Justice administrators may not be able to achieve every
goal they set for their agency but they can maintain a clear and focused
philosophy. The crime
control through due process model appears to be the best strategy to
deal with crime in the days ahead.
It is interesting to note that Frank Scmalleger’s
interpretation and combination of the two models appears to be
consistent with the very framework laid out by the founding fathers in
the United States Constitution when they wrote, “We
the People of the United States, in Order to form a more perfect Union, establish
justice, insure domestic tranquility,
provide for the common defense,
promote the general welfare, and secure the Blessings of Liberty to
ourselves and our Posterity,
do ordain and establish this Constitution for the United States of
Only time will tell.