The high level of activity in the criminal justice system and the resultant productivity arise from a range of interconnected beliefs that the implementation of criminal sanctions to offenders is an essential and useful means of holding up the existing moral and political order. That is to say, the criminal sanction can be deemed to be a reinforcer of the moral beliefs and social order. This paper, however, will look at both sides of the application of criminal sanction. ‘Used providently and humanely it is a guarantor of human freedom; used indiscriminately and coercively, it is a threatener.’ (Packer, 1968:366)
Professor Packer uses his knowledge and understanding of the nature of criminal sanction largely to show how much it actually does threaten freedom; hence the arguments will revolve around this view. The essay aims to explain Packer’s quote and illustrate instances of criminal sanction as a ‘prime guarantor’ or ‘prime threatener’ of human freedom. The essay then goes to explain the rhetoric and the reality of justice and intends to point out the gap, which exists between the two. As Herbert Packer identified the law in books can be quite obsolete and detached from reality (Packer, 1968). His ideal models, namely due process and crime control, will be the cornerstone of the criminal justice evaluation. However, other models will be introduced and used to assess Packer’s imagery of value choices. In order to truthfully assess the character of justice alongside criminal sanction per se and be able to draw conclusions on how is justice manifested, this paper will succinctly look at several aspects of criminal justice process, including policing, prosecution and court procedures, and outside factors which shape this process.
Part I: Explain and Illustrate
Traditionally, criminal sanctions are justified both on the grounds of retributive and utilitarian reasoning. Today, the contemporary ‘penal harm’ society is rather utilitarian and ‘the greatest happiness of the greatest number’ appears to be the leading principle of demeanor (Castellano, 1998). The criminal justice system is known to deliver justice by apprehending, prosecuting and punishing wrongdoers and the key rationale behind the extended employment of the criminal sanction is the common conviction that exercising frequent and severe levels of punishment represses and curbs crime through deterrence and incapacitation (Tonry, 2000:345).
If it were to approach Packer’s crime control model, the primary concern of the criminal justice process would be efficiency. The process has to produce ‘a high rate of apprehension and conviction’ and must consequently ‘place a premium on speed and finality’ (Packer, 1968:159). However, problems arise if this aim is pursued regardless of the rules protecting the rights of the suspects. In order to achieve ‘efficiency’, criminal justice agents more often than not fabricate evidence, get false confessions (case of Guildford Four...