Select a policy from the list of examples found in Chapter 1 of Criminal Justice Policy in Table 1.1 “Examples of Federal Criminal Justice Policies” (Mallicoat, 2014). In this discussion, you will evaluate your selected criminal justice policy by using one of the models (i.e., Packer’s, Feeley’s, or Cox and Wade’s) discussed in Chapter 2 of The Public Policy of Crime and Criminal Justice (Marion & Oliver, 2012).
Initial Post: After selecting one of the criminal justice policies as identified by Mallicoat, evaluate it based on one of the models identified in The Public Policy of Crime and Criminal Justice, and explain your conclusions based on your evaluation of the current criminal justice system. In your examination of the policy process, determine if the policy under review is symbolic or substantive. Finally, determine the major goal and secondary goal of the policy based on Box 2.1 “Major Goals of the Criminal Justice System,” in The Public Policy of Crime and Criminal Justice (Marion & Oliver, 2012). Support your claims with examples from the required materials and/or other scholarly sources, and properly cite your references with both in-text and APA citations at the end of your post. Your initial post is due by Day 3 (Thursday) and should be at least 400 words in length.
Examples of Federal Criminal Justice Policies
- Controlled Substances Act (Comprehensive Drug Abuse Prevention and Control Act of 1970) – Regulated the manufacturing, importation, possession, and use of controlled substances (both legal and illegal).
- Combat Methamphetamine Epidemic Act of 2005 – Regulates the over-the-counter sale of medicinal products containing ephedrine, pseudoephedrine and phenylpropanolamine (products typically found in cold medications and used to manufacture methamphetamine).
- Anti-Drug Abuse Act of 1986 – Enacted mandatory minimum sentences for drug possession.
- Fair Sentencing Act of 2010 – Changed the sentencing ratio between crack cocaine and powder cocaine to 1 to 18 (previously a 1 to 100 ratio).
- Sentencing Reform Act of 1984 (Comprehensive Crime Control Act) – Created sentencing structure for Federal offenses, established the U.S. Sentencing Commission, and abolished Federal parole.
- Sex Offender (Jacob Wetterling) Act of 1994 – Requires convicted sex offenders to notify policy of changes to residency and employment status.
- Adam Walsh Child Protection and Safety Act of 2006 – Organizes sex offenders into a 3-tier system and mandates timelines for registration based on tier. Creates a national sex offender registry and provides for the civil commitment for sexually dangerous persons.
- U.S. Patriot Act (2001) – Expanded the power of police agencies to gather intelligence data on terrorism suspects, and broadened discretionary powers to detain and deport immigrants suspected of terrorism.
- Fraud Enforcement and Recovery Act of 2009 – Enhanced criminal punishments for Federal fraud laws, including mortgage fraud, securities fraud, commodities fraud, and fraud by financial institutions.
- Juvenile Justice and Delinquency Prevention Act of 1974 – Deinstitutionalized status offenders, provided for separation from youth and adult inmates, and required the states to review disproportionate minority confinement. Created the Office of Juvenile Justice and Delinquency Prevention (OJJDP) and the National Institute for Juvenile Justice and Delinquency Prevention (NIJJDP). Reauthorized six times (1977, 1980, 1984, 1988, 1992, and 2002) with additional provisions, such as addressing gender bias, an emphasis on prevention and treatment, family strengthening, graduate sanctions, risk and needs assessments, and funding provisions.
- Violent Crime Control and Law Enforcement Act of 1994 – Largest crime bill in history. Includes:
- Federal Assault Weapons Ban of 1994 (banned the manufacturing of all fully automatic firearms and selected semi-automatic firearms, as well as high capacity ammunition magazines)
- Federal Death Penalty Act of 1994 (increased the number of federal crimes that are eligible for the death penalty)
- Violence Against Women Act of 1994 (provided funding for the prosecution of offenders of crimes of domestic violence, imposed mandatory restitution, and created opportunities for civil remedies for victims. Reauthorized in 2000 and 2005)
- Community Oriented Policing Services (COPS) program of 2000 (provided funding to implement community policing programs in jurisdictions nationwide)
MAJOR MODELS OF THE CRIMINAL JUSTICE SYSTEM
The first major conceptual model of the criminal justice system came from Herbert Packer, who was a distinguished professor of law at Stanford University. In the 1960s, Packer published an article titled “Two Models of the Criminal Process,” which was later included in a book titled The Limits of the Criminal Sanction.2 In these publications, Packer presented two models of the criminal justice system: the crime control model and the due process model. His goal was to present two models that would “give operational content to a complex of values underlying the criminal law.”3 Packer achieved his goal, for these two models have come to reflect the competing ideologies and policies of the criminal justice system.
Packer did not necessarily want these two models to become an oversimplification of the values that underlie the criminal process. Rather, he wanted to be able to communicate the two competing systems of values that created an enormous amount of tension on the development of the criminal process and how it should best be ordered. He did contend that the polarity of the two models was not absolute and that there was some common ground between these competing philosophies. The primary commonality between these two competing models, Packer explained, could actually be found in their adherence to the U.S. Constitution. Both adhered to the principles found in the Constitution, but each does so in its own unique way. In addition, both agree that our system is an adversarial system, pitting the prosecution against the defense. Neither model disagrees with this basic premise, but how they react to the adversarial system of justice is quite diverse. Despite the articulation of this “common ground” between the competing models, it is the polarity of the two models that is most renowned and most discussed in terms of Packer’s models. Therefore, it is to these two competing models we now turn.
The crime control model articulates that the repression of criminal conduct is by far the most important function of the criminal justice system. If the system and, more specifically, the police fail to keep criminal conduct under tight control, then it is believed that this will lead to the breakdown of public order, which will cause the denigration of human freedom. If people are not free to do as they choose for fear of crime, then society suffers. Thus, the criminal justice system becomes a guarantor of human freedom. And to achieve this freedom, the crime control model argues that the criminal justice system is charged with arresting suspects, determining guilt, and ensuring that criminals are properly punished. Therefore, the crime control model stresses the need for efficiency and speed to generate a high rate of apprehension while dealing with limited resources. The goal is to then process these individuals through the system by moving those who are not guilty out of the process and moving those who are toward some form of sanction. Every step in the system, however, is focused on the successful and speedy prosecution of the offender. To this end, individual constitutional rights must often be seen as secondary to the effective prosecution of offenders. This model assumes that in most cases, people who are brought into the system are in fact guilty; otherwise, they would not have been brought into the system in the first place. Thus, a presumption of guilt exists prior to a suspect becoming a defendant. Therefore, one way to achieve successful prosecution of these suspects is for lawyers from both sides to come to an agreement about the case, achieve a guilty plea, and close the case.
The due process model is generally the polar opposite of the crime control model. The ideology behind the model is that due process is “far more deeply impressed on the formal structure of the law”4 and that the protection of individual, and thus constitutional rights, is paramount. Every effort must be made to guarantee that an individual is not being unfairly labeled and treated as a criminal, especially before being found guilty. Hence, rather than assuming a suspect to be guilty, due process assumes the suspect to be innocent, and guilt must be proven by the criminal justice system. The purpose of the system, then, is to create a process of successive stages that is “designed to present formidable impediments to carrying the accused any further along in the process.”5 The reason it does this is to prevent and eliminate any mistakes being made in the process, at least to the greatest extent possible. Packer describes the due process model as always being skeptical of the morality and utility of the criminal sanction and is wary of the actors in the criminal justice system. Thus, at each successive stage of the system, roadblocks are created to ensure that the innocent go free and that the guilty receive equal protection under the law.
Although Packer did not desire the two models to be seen as entirely polar opposites of an ideological spectrum, it is this aspect of the model that is most attractive to the student of criminal justice. The crime control model resembles an assembly line, while the due process model resembles an obstacle course. The crime control model is oriented on being as efficient as possible, while the due process model desires to be equitable. The goal of the crime control model is to punish criminals, while the due process model aims to protect individual rights. The crime control model achieves its ends through tough legislation and strong enforcement through the administrative process. The due process model is more judicially oriented and is legalistic in nature. And, as both models are ideologically driven, they tend to be represented by the two political ideological perspectives as well. The crime control model is adhered to more often by conservatives, and the due process model is more often attributed to liberals. Although there are always exceptions to the rule and these generalizations might not always hold true, they have a strong consistency because they are ideologically based.
Taking Packer’s two models a little further was Malcolm M. Feeley, a professor of criminal justice and the law, in a 1973 article titled “Two Models of the Criminal Justice System: An Organizational Approach.”6 Feeley’s purpose was to create a theoretical framework for explaining the organization of criminal justice in order that research could be viewed through these two perspectives. Feeley articulated that there were two models of organization: the rational-goal model and the functional-systems model.
To create his rational-goal model, Feeley combined two models that had been previously advanced and merged them into one model. The rational model argues that an organization is focused on the means of accomplishing its mission, while the goals model argues that it is not the means but rather the end that is important. Feeley advances the argument that in criminal justice these two concepts, the means and the goals (ends), are often the same thing, for in criminal justice we seek justice (means) to obtain justice (goals). The way this is accomplished is through an adherence to strict rules and procedures within the bureaucracy, much in the vein of Max Weber.
Weber is the primary scholar who speaks to the rational organization as being the primary means by which government achieves its goals. Organizations are characterized by several major components, consisting of (1) a continuous organization of official functions bound by rules, (2) a specific sphere of competence (obligations) in the division of labor to be performed by a person who is provided with the necessary means and authority to carry out their tasks, (3) the organization of offices following the principle of hierarchy, and (4) a set of technical rules and norms regulating the conduct of the offices.7 As in the criminal justice system, the system itself is made up of various officials (police, judges, correctional officers, and so on) who are bound by formal rules, given specific responsibilities and authority to carry out their duties, must follow a chain of command (especially in policing and corrections), and are guided by policies and procedures in the performance of their duties. By ensuring that the organization is highly effective in the performance of their duties (means), they can ensure that they achieve their ends (goals). Thus, effectiveness, like in Packer’s crime control model, is the overriding goal.
The functional-systems model is a different conception of how an organization is employed. The common characteristics of this model are that criminal justice is a “system of action based primarily upon cooperation, exchange, and adaptation”8 and that it emphasizes “these considerations over adherence to formal rules and defined ‘roles’ in searching for and developing explanations of behavior and discussing organizational effectiveness.”9 In fact, this model would acknowledge the viewpoint that the criminal justice system is not very effective in operating through its rules and that the actual means for obtaining these goals is the adherence to the more informal rules of the game, folkways, personal relationships, and dedicated individuals. Another way of explaining the differences between the two models is that the rational-goal model is focused on creating a rational organization, while the functional-systems model is focused on creating rational individuals, those people who work within the criminal justice system, to be better adept at pursuing goals. Hence, increased discretion is important in the functional-systems model because it allows those actors in the system to make decisions in the application of the law rather than the rules, as would be the case in the rational-goal model.
In Feeley’s two models, we once again see ideology as shaping the viewpoint of how criminal justice should best be organized. Packer’s models provided us two viewpoints for understanding the purpose of criminal justice, while Feeley’s models provide us a perspective on how best to organize society in order for these ends to be achieved. Thus, it can be seen that those whose ideological beliefs lead them to believe that the crime control model is the proper function of our criminal justice system will also most likely believe that the rational-goal model is the best way to achieve this end. Those who believe in the due process model will most likely articulate that the functional-systems model is the best way to organize the criminal justice system. Ideology again shapes our understanding of how criminal justice should best be ordered.
If the complexity of Feeley’s two models is lost on the reader, then perhaps it can be made clearer through the more recent debates over whether criminal justice is a system or a nonsystem. In the criminal justice system model, the concept that criminal justice operates as a bona fide system is advanced. A system is made up of interdependent elements that work together to perform one or more tasks or goals. This definition implies first that the component parts or subsystems are working together to reach one ultimate goal and second that the system is a sequential, orderly process similar to a factory assembly line whereby a client must be processed through each stage before entering into the next. There are component parts (the police, courts, and corrections agencies) that work together to reach the goal of reducing or preventing crime. There is also a sequential process that must be followed as one goes through the criminal justice system. When individuals enter the system, they must do so through an arrest: They cannot go straight to the courts or to the corrections components. Then, after the arrest stage, a defendant goes through the court component. They cannot go directly to the corrections area. Only after the defendant had been processed through the first two components of the system can he or she enter the corrections component. In order to get to the next level, an offender must have had contact with all the preceding ones.
Each of the components must work together to achieve a final result, meaning that they are interdependent. The work of each department, therefore, is heavily influenced by the work of every other department. When one unit changes its policies or practices, other units will be affected. For example, an increase in the number of people arrested by the police will affect the work not only of the judicial subsystem but also of the probation and correctional subsystems. Each part must make its own distinctive contribution: Each part must also have at least minimal contact with at least one other component of the system.
From this perspective, the criminal justice system is indeed a “system.” However, many people see the criminal justice system as a nonsystem in which the component parts do not work together to achieve a goal. Each of the departments is independent and has its own tasks or goals. The police have a goal of bringing people into the system, while the corrections system wants to get them out. Within the courts, the prosecution wants to keep the defendant in the system, and the defense wants to get the case dismissed. Each agency acts as its own department, with its own goals and needs. In addition, each component struggles to find its own resources, sometimes competing for the same resources. This competition, added to strained relations, poor communications, and a reluctance to cooperate with each other, can generate antagonism between the departments. This, in turn, can lead to poor working relationships and resistance to working with each other and doing what is in the best interest of the client and society. Additionally, people working inside the system, as well as those observing the system, lose their respect for the system and may be more likely to seek justice in alternative ways.
Cox and Wade’s Criminal Justice System
Another way of thinking about the nonsystem approach has been advanced by Cox and Wade, who argue that the traditional flowchart presentation of the criminal justice system is often misleading and inaccurate.10 They argue that it fails to indicate the routine pursuit of different, sometimes incompatible goals by various components; the effects of feedback based on personal relationships inside and outside criminal justice; the importance of political considerations by all those involved; and the widespread use of discretion.11 Instead, what they argue is that we really do not have a criminal justice system but rather a criminal justice network. They advance this nonsystem concept as “consisting of a web of constantly changing relationships among individuals, some of whom are directly involved in criminal justice pursuits, others who are not” and that “a network may be thought of as a net with intersecting lines of communication among components designed to function in a specific manner.”12 What Cox and Wade argue is that each criminal event can be unique and that the network will come to bear on the problem in different ways. A series of simple larcenies from auto may generate a network of police officers, detectives, and prosecutors to address the problem, while a kidnapped child who is taken across state lines will create a network of both criminal justice actors (local police, state police, Federal Bureau of Investigation, prosecutors, and so on) and non-criminal justice actors (victims’ family, the media, the National Center for Missing and Exploited Children, and so on). Different actors, agencies, and resources are all brought to bear on a specific problem, but it is not a standard response, nor is it always going to be the same responders. These various criminal justice and non-criminal justice actors employ those aspects of the network that are necessary to address a specific problem. This is why they explain that the criminal justice “network” is a “web of constantly changing relationships among individuals involved more or less directly in the pursuit of criminal justice.”13
These various models of the criminal justice system (or network) provide varying ideological approaches to criminal justice and help us understand how we perceive this system. Yet there is something more to our understanding of criminal justice that is an extension of our ideological approach to justice that tells us the purpose of the system itself. While most would agree that the ultimate goal of the criminal justice system is to seek justice, the term justice can have various meanings to various people. Again, these variations generally proceed from one’s ideological perspective. What defines this complexity is most often the discussion of the goals of the criminal justice system. It is here that perhaps the greatest conflict begins to arise in policy formulation, and it is to this topic we now turn.