Justice, Part 2

Continuing with my look at the Herbert Packer paper, Two Models of the Criminal Process, which I started yesterday.

There are many problematic areas of the Justice System as it stands now. The pure Due Process model is ideal, but as I pointed out yesterday, reality is closer to a blend of the Crime Control Model, which values community order more highly than individual rights, and beyond that, this is a paper written fifty years ago. Time has not stood still, nor has progress in regards to the Justice System.

However, there are still gems of truth here, and perhaps in rediscovering them, we can begin an examination of where we went wrong, and how we might correct courses gone astray. I am hoping that is why the professor assigned this to us for reading. While one cannot change the laws from within the system, those who might make a difference could be looking on, and certainly, they need to know this every bit as much as those who are in law enforcement.

Packer points out, as I mentioned before, that we can have as much or as little crime as we choose (the we being the community, in this case, broadly, the nation) by the laws we set in place to criminalize activities. However, many of the laws verge on the ridiculous, and come very close to unenforceable, which degrades the overall effectiveness of the Justice System, for if some laws may be, and are, ignored, why not others? Packer uses fornication as an example, which still works, as fifty years later it has become even more absurd, “the victimless crime always presents a greater problem to the criminal process than does the crime with an ascertainable victim.” (p 4) If neither party is willing to make a complaint, how shall we prosecute a victimless crime?

And there is no way to force this, or to force a suspect to confess, or to keep them restrained until they give up and do so, as this is a core tenet of the system Packer lays out. “It is a basic right of free men-basic in the sense that his other rights depend upon it-not to be subject to physical restraint except for good cause.” (p26) or this, earlier on in the paper, “But no one in our society would maintain that every 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 that there should be no form of redress for violation of at least some standards for official investigative conduct.” (p8) This, of course, is based on constitutional amendments, and the Bill of Rights. It ought not change, as long as our nation is still nominally based in and on those foundational documents. Reality, on the other hand, sees a slide away from them, lipservice, but legislative and judicial disregard for the tenets we had clung to for so long.

Perhaps, then, we are nearing the point in out society that Packer feared: “there may come a point at which the quality of life in a free society is adversely affected by increases in the proportion of public resources employed to detect, prosecute, and punish activity that has been defined as criminal.” (p67)

We see in the news, articles that make it clear that very little care is taken before executing searches and assaults on private homes. This is by no means an isolated incident, as you can ascertain by the homeowner and the police alike knowing what was happening almost from the beginning. And yet… anonymous internet pranks still carry weight. As long as they do, they are a danger not unlike the boy crying wolf. We continue to respond with alarm, but the day approaches when we are so fatigued with it, we will either do something utterly foolish, or fail to respond when the situation is real.

As the society we live in becomes ever more skittish, responding to every possible alarm, we see incidents like this, which rouse cries of “the thought police are coming!” How is this a possible productive use of resources? The police, after all, are not actually here to protect the people, but to enforce the laws. Ergo, the obvious solution is to band together and begin to overhaul the laws, weeding out those which allow for abuses of Justice. It will not be an easy process, for the inertia that Packer saw fifty years ago has only had time to further grow. “The behavior content of the criminal law has expanded enormously over the past century, mainly because declaring undesirable conduct to be criminal is the legislative line of least resistance for coping with the vexing problems of an increasingly complex and interdependent society.” (p67)