Discussion 1:The policy I chose from Mallicoat table 1.1 is the Fair Sentencing Act of 2010. The act changed the sentencing disparity between powder cocaine and crack cocaine from 1:100 to 1:18 ratios. (Mallicoat section 1.1. 2014)
Within the act, the language was changed to reflect a larger quantity of possession from 5 to 28 grams in paragraph 2C, and from 50 to 280 grams in paragraph 1C. The act also struck down mandatory minimum sentencing. Section 4 of the act increased the penalties for major traffickers. It also increased penalties for importing and exporting cocaine products. Acts of violence during the trafficking of cocaine have also been altered appreciably in the updated bill. (Civic Impulse, 2017)
The model I have chosen to utilize to evaluate the Fair Sentencing Act is Feeley’s Rational Goals model. In this model, Professor Feeley combined the best of Packer’s Crime Control and Due Process models. Marion section 2.1 explains, “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 ends are often the same thing, for in criminal justice we seek justice (i.e. means) to obtain justice (goals)”.
The goal of the Fair Sentencing Act of 2010, in my view, is to reduce sentencing disparity, penalize traffickers especially those committing violence, and to increase the amount of possession as well as eliminate mandatory minimum sentencing. This effectively allows prosecutors more discretion in their sentencing recommendations. They also have the opportunity to consider mitigating factors in the sentencing guidelines. I also see the means of reducing the sentences the goal of reducing overcrowding in the correctional system.
I believe the major goal of the Fair Sentencing Act is general deterrence in that the idea of sentencing for drug crimes especially trafficking is to get the community at large to decide not to commit the same error in judgement. (Marion section 2.3 2012)
The secondary goal of the Fair Sentencing Act, as I see it, is temporary incapacitation of drug traffickers. As far as that is concerned, removing a trafficker for a period of time from the community reduces if not eliminates the offender’s opportunity to continue the criminal pattern. I also believe the reductions of the sentencing times staves off prison overcrowding allowing a restoration to the community in the life of the offender sooner than had been previously.
In evaluating whether the goal of the policy is substantive vs symbolic, I believe it is primarily substantive. Marion defines a substantive policy as one that deals with a tangible and substantial problem. Policies like these give resources to those who carry out the policy and imposes real disadvantages to those who run afoul of it. (Marion section 3.6, 2012)
Discussion 2: For this week’s discussion, the example of a Federal Criminal Justice Policy that I chose, is the Anti-Drug Abuse Act of 1986. This act best correlates with Packer’s Crime Control Model. Marion and Oliver (2012) stated “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” (chapter 2.2). The Anti-Drug Abuse Act of 1986, focuses on executing according to Mallicoat (2014), “mandatory minimum sentences for drug possession” (chapter 1.1). The goal of the Anti-Drug Abuse act is to impose sentences for drug possession, and the crime control model seeks to control crime, by incarcerating those that are guilty of crimes, while letting free those that aren’t guilty. This Federal Criminal Justice Policy and Crime Control Model, go hand in hand, both achieving the same goal at the end, justice. While the Crime Control Model focuses on deterring and controlling crime by attempting to incarcerate and convict any offenders, (Peak, 2016), the Anti-Drug Abuse Act also focuses on incarcerating those that are found guilty of possession of drugs.
In our current criminal justice system, the same concept still applies. Any offender that is found guilty of a crime, will be apprehended for their crime in hopes of helping deter crime and in hopes of helping rehabilitate the offender after their sentencing is complete. The Anti-Drug Abuse Act is a substantive policy that still applies to our current day. Depending on the state laws, a person that is found guilty of the possession of drugs, will receive a minimum sentencing, once again depending of the type of drug and the amount of it. The major goal of the policy, is to deter people from committing crime and the secondary goal is to receive punishment for the crime committed. According to ACLU (2006), “Congress made it clear that by passing the current mandatory penalties for crack cocaine, it intended to target major drug traffickers” (para. 9). This example can help demonstrate how the major goal of the policy is to deter crime by targeting drug traffickers, while also addressing the secondary goal of ensuring that criminals receive their adequate punishment. By removing drug traffickers from the streets and incarcerating them, not only is the policy of lowering crime the focus, but they are also focusing on the goal of helping deter crime, by keeping drug traffickers out the streets and in prison.
Guided Response: Review your peers’ posts, and substantively respond in a meaningful way to at least two of your peers using a different Marion and Oliver model for each response. Do you come to different conclusions or different priorities using different models? Do the goals of the policy change?
MAJOR MODELS OF THE CRIMINAL JUSTICE SYSTEM
Packer’s Models
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.
CRIME CONTROL
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.
DUE PROCESS
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.
Feeley’s Models
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.
RATIONAL GOAL
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.
FUNCTIONAL SYSTEMS
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.
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