The Due Process Model Essay


The first section of the paper is a general introduction on the models that are employed in the criminal justice system. The uses of the models in the system are provided under this section. The nest section gives the background information on the models especially the two that were developed by Hebert Packer, that is, the due process model and the crime control model. The focus of the paper is on the due process model.

The other section is where the due process model is evaluated for fairness, efficiency and effectiveness. The other section of the paper highlights the weaknesses of the model. There is a section that evaluates the due process model against the criminal justice system. Finally the conclusion sums up the entire paper.


The criminal justice system has been researched for very many years. These researches and studies have been aimed at finding the most fair, just and effective approach in criminal justice system. One of the common names that come up when this topic is studied is Hebert Packer. Packer is the one who produced the first two models that are applied in the criminal justice system even today. Since his work, a lot of scholars have emerged with new models, but those of Packer remains the most commonly used. Most of the other models have been influenced by the work of Packer (Cochrane, Melville and Marsh, 2004). The models have provided a very significant way of dealing with the complexity of criminal justice system. The due process model and the crime control model are the oldest models to be developed in the criminal justice system. These are the two that were developed by Hebert Packer (Galligan, 1996). They are developed for effectiveness and efficiency in delivery of justice in a criminal justice system. They are a guide in the review of the working of the criminal justice system (Schmalleger, 1999). They can also offer a normative direction to what principles are supposed to control the criminal process. The models can also be viewed at as viewpoints and dialogues that surround the criminal justice system (Cochrane, Melville and Marsh, 2004). The paper seeks to prove that the due process model of Hebert Packer is the most preferable model in the current criminal justice system.

Background information

The due process model puts emphasis on legal procedures and safeguards. It is founded on the principle of legal guilt and innocence assumption. This means that a person is presumed innocent until proven guilty. The model states that a person cannot be denied of his life, freedom and possession without a proper legal proceeding. Under this model, every person accused of a crime requires to his rights protected by the system. It is from this perspective that the model is thought to emphasis on the rights of the accused rather than those of victim (Galligan, 1996). There are various arguments that are contained in the due process model. The first assertion is that there is emphasis on the due procedure. The most basic function of the justice system under this model is to offer due process of basic fairness under the regulation. Every accused person under this model is entitled to a legal proceeding because he deserves to be heard before being judged. The second argument is that the system ought to concentrate on the rights of the defendant rather than those of the victim. This is owing to the fact that the bill of rights calls for the protection of the rights of the defendant. Everything carried out during the process should take into account those rights. The other argument is that the powers of the law enforcement officers should be restricted. This way it will be possible to prevent police misconduct and oppression towards the public. The fourth argument is that constitutional rights are not just technicalities (Peak, 2001). Due to this the players in the system are supposed to be held responsible to regulations, procedures and guiding principles. They should be carried out in such a way that there is justice and reliability in the criminal process. The other argument is that the justice process ought to operate like an obstacle course. This means that the system should have a sequence of impediments that look like procedural defences that offer protection to the factually innocent while convicting the factually guilty. This system does everything possible to avoid punishing the innocent and ensuring that the guilty gets the kind of punishment that they deserve. The final argument is that the states should not hold an accused person guilty only according to the facts. This means that factual guilt should not be the basis of deciding whether an accused person is guilty or not (Cochrane, Melville and Marsh, 2004).

Evaluation of the model for fairness, efficiency and effectiveness

The due process model involves both substantive and procedural approaches. The procedural approach is employed in ensuring fairness in the manner that is used to deny a person of his right to freedom, life and property. These are fundamental rights that are projected under the bill of rights. Denying a person these rights without a proper procedure that would justify the move is unfair. The substantive approach in the due process model calls for convincing governmental rationalisation for denying an individual these rights. This process calls for the application of both the criminal and civil law. This makes it a very strong system in the current criminal justice system (Bronitt, 2008).

The due process model is concerned with equality. Under this model, regardless of the socio economic status or power, all accused people are treated in the same way. For example, under this model every defendant has the right for legal representation. This is regardless of whether one is able to afford one or not. The people where not able to afford the services of a lawyer are provided one hired by the state. This is a fair system where there should be no cases of discrimination on the basis of gender, race, economic status, or any other aspect of individual’s life. It is a system founded on the principle of fairness and equal justice for all. This system looks at every person as being equal and does not have room for favours or discrimination (Goldberg, 2005).

Under the due process model there is protection of the rights of the defendant. It is argued that it is the poor and the minorities who suffer the abuse and oppression from the law enforcement officers. Thus the assumption under the model is that by protecting the rights of the accused, the criminal justice system protects these disadvantaged groups (Richardson, 2008). This model is best applied in ‘victimless crimes.’ This is because the rights of the accused are the key focus under the system. Being a person whose rights are protected by the law, the justice system has no right to deny an accused his rights without a chance to be heard. This is the other element of the system that ensures fairness. It is necessary for every accused individual to be offered an opportunity to be heard where his life, freedom or property is on the line. This is sufficiently offered under the due process model. There is no discrimination under this law and every person is treated fairly from the beginning to the end of the process. This ensures that no person is subjected to unfair treatment as would happen in case an innocent person is convicted (Bronitt, 2008).

This model prevents law enforcement officers from victimising suspects and carrying out investigations and questioning. Under the model, the law enforcement officers are not supposed to detain a person during the investigation, unless it is absolutely necessary to ensure that the suspect is available for trials. Under this model, the law enforcement officers are charged with the responsibility of preserving law and order in the society. People have the right to their freedom as long as there is no evidence to convict them. This minimises torture and coercive interrogations by the law enforcement officials (Peak, 2001). There are legal penalties for law enforcement officers and prosecutors who rely on short-cuts to get to the evidence required. As a result, it is possible for the law enforcement officials and prosecutors to take advantage of the ignorant, the illiterate and the unpopular to get what they want while abusing the disadvantaged. There is penalising and labelling as inefficient any kind of misconduct and violation of the rights of the accused by the law enforcement officers and the prosecutors. Proper psychoanalytic and deterrent regulations are supposed to be in place due to the fact that much of misconduct from the law enforcement officers will go unreported. Under the due process model, the law enforcement officers and the prosecutors are not supposed to be involved in the screening of the accused (Cochrane, Melville and Marsh, 2004).

There is no pre-trial detention under this model, unless it is deemed absolutely necessary. This is maybe where it is necessary to ensure that the accused attends the trial or where the accused is considered a threat to the society. This is a positive move because, where pre-trial detention is a rule, it is possible to detain an innocent person. While preparing for the defence therefore, it is important to put the accused out on bail pending the court proceeding and determination of the case. This ensures that if a person is innocent, he or she is not put to detention which would prove inefficiency or injustice by the system (Goldberg, 2005).

There is the aspect of the accused choosing not to communicate with the law enforcement officers, especially when directed by the legal representative. The accused is carefully informed on any kind of communication between him and the law enforcement officers. Any statements taken during the before the accused is presented in court should be taken carefully. This is because any statement from the accused that are taken without a clear and consented waiver, are eliminated from the following trial. This is done for the purpose of protecting the defendant from unjust self-incrimination. Under this model, guilty pleas without proper proceedings cannot be used to convict a suspect (Richardson, 2008). The elimination of the statement and the refusal to accept guilt plea is not that the two are untrue or unreliable. The reason is that they both go against the principle of the criminal justice system that it is the duty of the state to file a case against the accused without pressuring him to oblige in the procedure. In accepting such statements or guilty plea is considered to mean taking advantage of the fact that the defendant is unaware of his rights (Bronitt, 2008).

There is no encouraging guilt plea under this model. This is because a criminal process should not be seen as unnecessary burden. The process should be seen as the appropriate and reasonable conclusion of the process. This is proper because encouraging guilt plea by offering deals to the accused is a short cut and cannot be used in the evaluation of the efficiency and effectiveness of the justice process. It is by successful completion of the process that the system’s efficiency and effectiveness is determined. The decision of guilt is not based on the factual guilt, but on the legal guilt (Roach, 1999). The prosecutor is supposed to prove that the defendant is guilty beyond any reasonable doubt on the basis of the evidence that is acquired legally. Authentic and sufficient evidence is supposed to be presented in court in order to prove guilt without reasonable doubt. Cases under this system can be dismissed for lack of sufficient evidence to prove guilt without reasonable doubt. The defendant has a right to defence. Legal representatives have an active part to play in the process. The lawyers defend the accused during the trial process effectively to ensure that they are not convicted unfairly (Peak, 2001).

            Due to the fact that there is a probability or rather a minor risk of convicting an innocent person, the model allows the defendant to appeal if he so wishes. In this case, there is a reversal of the case. This is carried out for confirmation of proper principles and deterrent. Under this model there is no room for violation of the rights of the accused, even by trial judges. Where the defendant feels that they are unfairly convicted or that justice has not been served, they are allowed the chance to appeal (Roach, 1999). This system offers absolute justice because there are very minimal chances of convicting an innocent person. The possibility of the accused being convicted just because they have been coerced or convinced to plead guilty is not allowed under this model. Under the model justice prevails. There is also the consideration of parole under this model. This is because the model is based on rehabilitation of the criminal and as long as the system is convinced that the criminal has reformed, there is no need to keep him long in the correction facility. This proves the efficiency of the system (Bronitt, 2008).

The model considers the fact that there are limits within the criminal justice system that should not be crossed. Everyone under this system is bound by law and no one is above it. For example, the court has boundaries as to its authority when carrying out investigations. The court and the entire justice system are not allowed to abuse the power given to it. There is the awareness that every person has his constitutional rights that should be protected. The system is supposed to do everything to endure that the innocent people are not convicted. From the hearing it is also possible to determine the kind of punishment that is necessary to punish a particular crime (Cochrane, Melville and Marsh, 2004).

Weaknesses of the due process model

            Regardless of the fact that the model proves to be the most preferable in the current justice system, it is not without some weaknesses. This model fails to take into consideration the fact that most criminal cases emanate from the minorities and the so called disadvantaged groups. This means that the absolute rule that their rights need to be protected places an undue burden on the justice system. For direct cases, this model is resource and time consuming. There is a lot of use of resources during the arrest time. In fact there is no other instant in a criminal process where lots of resources of the state are used more than during the arrest (Goldberg, 2005).

Evaluation of the model against the criminal justice system

The criminal justice system is the arrangement of processes and institutions that are aimed at social order, crime prevention and punishment for those who infringe regulations with punishment and rehabilitative processes. The criminal justice system is founded on three key objectives (Bator, 1963). Firstly, it is meant to ensure that justice is carried out. The due process model is the most just criminal justice model. Under the due process model, the suspect is presumed innocent until there is sufficient legal evidence to prove that he is guilty. There are very minimal chances that an innocent person can be convicted. This is also ensured by allowing for appeal if the defendant is not satisfied with the outcome. The second one is controlling crime in the society. Crime is controlled by ensuring that all legal proceedings are carried out satisfactorily and that every guilty person is accorded the kind of punishment he deserves. The final goal is prevention of crime. Crime prevention under the model is ensured by making sure that the police and the prosecutors all carry out their duty effectively. Under this model, every person is charged with a clear responsibility and that there is no crossing the line. The law enforcement officers are charged with ensuring law and order in the society, while the prosecutors are charged with the responsibility of proving legal guilt beyond reasonable doubt. By requiring that everyone is involved and that he or she plays his or her part effectively, the model works to prevent crime in the society (Roach, 1999).


This system is based on the principle of innocence until proven guilty. It is from this principle that the system avoids punishment or unfair treatment of the innocent. The model is fair and observes equality for all. Under this system there is not one who is above the law. There is fair treatment to all the defendants and the players in the system have designated responsibilities and therefore there is no chance or crossing the line. This era has seen a number of movements in defence of human rights. This model advocates for the observation of the rights of the defendant. The legal proceeding ensures that where the defendant is denied these rights, it is done through a due process. The system holds that every person has the right to be heard in a trial proceeding. All these aspects of the model confirm that it is more preferable in the current criminal justice system.


Bator, P. (1963). “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,”

Harvard Law Review 76: 441-442.

Bronitt, S. (2008). “Toward a Universal Theory of Criminal Law: Rethinking the Comparative

and International Project,” Criminal Justice Ethics, Vol. 27.

Carodine, M. (2007). “Political Judging: When Due Process Goes International,” William and

Mary Law Review, Vol. 48.

Cochrane, J., Melville, J. & Marsh, I. (2004). Criminal Justice: An Introduction to Philosophies,

Theories and Practice, New York: Routledge.

Galligan, D. (1996). Due Process and Fair Procedures A Study of Administrative Procedures,

Oxford: Clarendon Press.

Goldberg, J. (2005). “The Constitutional Status of Tort Law: Due Process and the Right to a Law

for the Redress of Wrongs,” Yale Law Journal, Vol. 115.

Peak, K. (2001). Justice Administration, third edition, New York: Prentice Hall.

Richardson, L. (2008). “Due Process for the Global Crime Age: A Proposal,” Cornell

International Law Journal, Vol. 41. Retrieved on May 12 2010 from

Roach, K. (1999). “Four Models of the Criminal Process,” Journal of Criminal Law and

Criminology, Vol. 89.

Schmalleger, F. (1999). Criminal Justice Today, fifth edition, New York: Prentice Hall.