'Packer’s Blind Spot: Low Visibility Encounters and the Limits of Due Process vs. Crime Control'

Abstract

This paper challenges a critical element of Packer's binary account of the criminal process, which characterized the criminal justice system as being caught in a perpetual struggle of values as between crime control and due process. Packer argued that there was a key division in the respective roles of legislatures and courts under his two models. According to his theory, the legislature is the institution of crime control, while the courts are concerned with due process. This paper challenges that claim. Although it acknowledges that courts are often instrumental in vindicating the interests of due process, it claims that when the empirical research into the actual workings of the criminal process is considered, along with the experience in both the United States and Canada over the intervening years, a fair amount of doubt emerges with respect to Packer’s assumption regarding the predominance of courts in facilitating due process. The paper argues that because of their institutional limitations, courts alone are incapable of meaningfully regulating police authority. That goal also requires a serious legislative commitment. The legislature has a critically important role to play if due process is to be realized. On their own, courts are simply not up to the task. Only legislation can clearly, comprehensively, and prospectively delineate police powers and establish the sorts of procedural safeguards needed to check routine and low-level exercises of police discretion. Unfortunately, Packer’s account of due process versus crime control depends on a fictionalized description of the courts, a view that actually serves to exacerbate the problem of low visibility abuses of police powers. It does so by reinforcing the rather misguided view that courts are capable of single-handedly vindicating the interests of due process. Experience has aptly demonstrated that they are not; that a collaborative effort between courts and legislatures is necessary for due process to be realized.