Correlates of Due Process

Abstract

One widely recognized method of constraining the abuse of coercion by the state is due process, which requires that the government does not deny or remove an individual’s property or freedom without showing cause and following proper legal procedures. The strategy of due process is to ‘present formidable impediments’ to the state’s use of force against its citizens (Packer, 1968, p. 163). Due process is the most fundamental right of free people because it is the primary mechanism through which all other individual rights and liberties are protected from encroachment by the government. In a seminal work, Packer (1968) presented two models of the judicial system representing competing value systems. The central value of his ‘crime control’ model was the repression of criminal conduct. A judicial system incorporating crime control values would operate in a way that would be analogous to an assembly line. The movement from arrest to incarceration would be efficient; though some innocent persons might be punished, few guilty persons would go free. The central value of the ‘due process’ model was protection of individual rights and liberties from violation by the state. If the crime control model resembled an assembly line, the due process model resembled an obstacle course.