Ideology in Criminal Procedure or A Third "Model" of the Criminal Process

Abstract

American thought about criminal procedure is confined within a prevailing ideology.' By describing an alternative, I shall seek to il-This title, as the reader will understand in retrospect, is in several respects something of a misnomer. A central theme of this article is that Packer, to whose article of a similar name, see note 2 infra, this title alludes, has given us not the tv.'o "models" he claims, but only one; hence this article should be entitled "A Second Model of the Criminal Process." It seems better to sacrifice such logic to rhetorical convenience. A similar consideration dictated use of the word "model," despite the fact, discussd in note 14 infra, that we are concerned with ideologies and perspectives, not models. Finally. one of the most important features of the alternative ideology I shall develop is that it rejects the dichotomy between substance and process characteristic of the kind of thinking about criminal procedure which Packer exemplifies and which is implicit in the title I have borrowed from him. t Assistant Professor of Law, Yale Law School. B.A. 1962, University of California (Berkeley); LL.B. 1965, Yale University. 1. The concept of "ideology" has a long and tortured history. See especially K. MA NNHES, IDEOLOGY AND UTOPiA (1936). I am not, in this article, primarily interested in the relation of ideology to self-interest, social structure, or the like. Cf. however, pp. 414-16 infra. I am concerned, whatever its genesis, with its effect on thought. I use the word to refer to that set of beliefs, assumptions, categories of understanding, and the like, which affect and determine the structure of perception (not only of physcal phenomena, like causation, which has consumed the interest of philosophers, but also, and most particularly here, of social facts, relationsips and possibilities). Ideological beliefs are pre-logical because they determine the structure of perception and consciousness and therefore are enmeshed in the factual and linguistic premises of argument. It is only self-consclousness concerning the existence and nature of ideology which permits an appreciation of the extent to which it determines the contents of the world of experience and possibility. Self-consciousness is therefore the primary intellectual virtue. The analytic rigor appropriate to logical discourse is relatively less important, because the very content of the concepts to be used is at stake, and the latent propositions involved do not submit themselves to the sort of empirical or logical refutation that is possible once the ideological structure of a domain is set. The preceding ideas all have an extensive literature of their own, and they will figure, more or less explicitly, in the entire remainder of this article. Whatever the difficulties may be with the concept of ideology, it is an essential critical concept of which far too little use has been made in legal scholarship. Cf. A. BLrmERG, CPMUMNAL JusntcE (1967), where the concept of ideology is invoked as an explanatory tool, but is used only to ...

The drug treatment court as a form of restorative justice

“…On the other hand, disintegrative or stigmatizing shaming permanently identifies the offender as a criminal and an outcast (Braithwaite, 1989;Griffiths, 1970). The dominant retributive criminal justice system functions as an ongoing 'degradation ceremony' which renders the offender's prospects of being reintegrated to society as an accepted member quite remote (Braithwaite, 1989, p. 14).…”

Charge Bargaining and Sentence Discount: The Victim's Perspective

“…It will be necessary throughout this article to refer to these two dominant models but it should be pointed out that others, such as the family model suggested by Griffiths, could be utilised (Griffiths, 1970;p. 373).…”

“…This would avoid the anomaly of favouring only a very few defendants with 'full-blown pitched battles' while avoiding the evil (in terms of administrative efficiency) of a trial for the rest. It would entail placing greater faith in public officials and would increase the net total of fairness and the educative effect of trials (Griffiths 1970;p. 397).…”

Third parties: victims and the criminal justice system

“…The more radical or romantic advocates have viewed informal proceedings as a desirable end in themselves, a more humane, "warmer way of disputing" (Smith, 1978), or a means of establishing "socialized courts" (Harrington, 1982). This appears to have been true of Griffiths (1970), who advocated a judicial proceeding that would resemble the set tlement of a family argument; of Danzig (1973), whose detailed proposal for the reorganization of the criminal justice system in urban areas stimu lated much of the literature on this topic,-and of Christie (1977), whose well-known essay "Conflicts as Property" advocated the replacement of prevailing systems of adjudication in criminal cases by an informal, de centralized, and deprofessionalized proceeding. Moreover, the last two writers also adhered to a neighborhood or community orientation for the justice system.…”

“…6 above) or has been concerned with models regulating the relationship between the state and the defendant (e.g., Packer, 1964Packer, , 1968Goldstein, 1974;Griffiths, 1970;Herrmann, 1978;King, 1981; see also Damaska, 1986). On the other hand, models that relate to victims have tended to be limited in scope, focusing either on forms of dispute processing (Sander, 1976;Thibaut and Walker, 1978) or on types of services from which vic tims might benefit (Mawby, n.d.)…”