Constructing a framework for criminal justice research: Learning from Packer's mistakes

New Criminal Law Review

Volumn 11, Issue 2, 2008, Pages 257-311

  Macdonald, Stuart ^a  

^a SWANSEA UNIVERSITY   (United Kingdom)

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EID: 45749107615     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2008.11.2.257     Document Type: Article

References (204)

1. Herbert Packer, The Limits of the Criminal Sanction (1968).
2. Id. at 364.
3. For an outline of the central argument of the book, see infra note 129.
4. The part of the book expounding these models is almost identical to an earlier article. See Herbert Packer, Two Models of the Criminal Process, 113 U. Pa. L. Rev. 1 (1964).
5. Packer, supra note 1, at 158.
6. Packer explained that the presumption of guilt is not the opposite of the presumption of innocence. The presumption of guilt "is purely and simply a prediction of outcome," whereas the presumption of innocence "is a direction to officials about how they are to proceed." Packer, supra note 1, at 161.
7. The presumption of innocence requires "that until there has been an adjudication of guilt by an authority legally competent to make such an adjudication, the suspect is to be treated, for reasons that have nothing whatever to do with the probable outcome of the case, as if his guilt is an open question." id.
8. Note that Packer's presumption of guilt only applies where it would be "plainly absurd" to maintain that the suspect did not commit the offense, such as where a person commits a murder in front of many witnesses and confesses to the crime. It must therefore be distinguished from situations where an investigator suspects an individual is guilty of an offense and then seeks to gather admissible evidence to substantiate his hunch. For a stark example of this ethos, see Williamson v. Reynolds, 904 F. Supp. 1529 (E.D. Okla., 1995). Ron Williamson was prosecuted in Oklahoma for first degree murder and spent eleven years on death row before finally being released in April 1999.
9. Packer, supra note 1, at 160.
10. Id. at 162.
11. Id. at 165.
12. Id. at 165.
13. Id. at 166.
14. Id. at 166.
15. Id. at 169.
16. Id. at 170, 171.
17. Id. at 154-158.
18. Id. at 155.
19. Id.
20. Id. at 156.
21. Id. at 157.
22. Id. at 155.
23. Id. at 154.
24. See, e.g., Lanzetta v New Jersey 306 U.S. 451 (1939).
25. Packer, supra note 1, at 154.
26. Id.
27. Id. at 153.
28. Id. at 177.
29. Id. at 154.
30. Packer also stated That The ideology of The due process model "is nor the converse of that underlying the Crime Control Model." Id. at 163.
31. He immediately qualifiled this statement by explaining that the due process model "does not rest on the idea that it is not socially desirable to repress crime." Id.
32. This particular statement was Thus intended to convey nothing more than the fact that both models agree that the raison d'être of the criminal justice process is to apprehend, convict, and sentence those who engage in conduct which has been defined as criminal. See infra part II.C.
33. David J. Smith, Case Construction and the Goals of Criminal Process, 37 B.J. Criminology 319, 335 (1997).
34. See also Andrew Ashworth & Mike Redmayne, The Criminal Process 39 (3d ed. 2005) (making a similar point).
35. Smith, supra note 27, at 336.
36. This distinction is recognized by other writers. Ashworth dininguihed be "general justifying aim" of criminal justice from principles and policies which qualify the pursuit of that aim. A.J. Ashworth, Concepts of Criminal Justice [1979] Crim LR 412. See also Neil Walker & Mark Telford, Designing Criminal justice: The Northern Ireland System in Comparative Perspective (Criminal Justice Review Group Research Report 18) (2000) (proposing a two-tiered "meta-model" of the criminal justice process).
37. Peter Duff, 38 B.J. Criminololgy 611 (1998).
38. Note that Smith subsequently refined his analysis of Packer's models. Smith, 38 B.J. Criminolology 616 (1998).
39. Malcolm Feeley, The Process is the Punishment 277 (1979).
40. Doreen McBarnet, False Dichotomies in Criminal Justice Research, in Criminal Justice: Selected Readings 31 (Baldwin & Bottomley eds., 1978).
41. Andrew Rutherford, Criminal Justice and the Pursuit of Decency 11, 13, 18 (1993).
42. Michael King, The Framework of Criminal Justice ch. 2 (1981).
43. A.E. Bottoms & J.D. McClean, Defendants in the Criminal Process (1976).
44. Ashworth & Redmayne, supra note 27, at 38-40.
45. Id. at 39.
46. Kent Roach, Four Models of the Criminal Process, 89 J. Crim. L. & Criminology 671, 674 (1999).
47. Id. at 673.
48. Ashworth & Redmayne, supra note 27, at 40.
49. Griffiths says that Packer gives us no way to determine whether the value of efficiency belongs more with the crime control model than the due process moclel, except that he happens to assign it to the former. John Griffiths, Ideology in Criminal Procedure or a Third "Model" of the Criminal Process, 79 Yale L.J. 359 (1970). Similarly Ashworth & Redmayne observe that although Packer ascribes the value or speed to the crime control model, since delays are a source of anxiety, inconvenience, and potentially prolonged loss of liberty, an emphasis on speed also belongs to the due process nodel.
50. Redmayne, supra note 27 at 40.
51. Griffiths, supra note 41, at 362 n.14.
52. Id. at 367.
53. Id. at 371.
54. Mirjan Damaska, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study, 121 U. Pa. L. Rev. 506, 572-73 (1973).
55. Id. at 576.
56. Damaska wrote: "Notwithstanding sporadic passages which seem to suggest the contrary, closer reading reveals that [Packer] does not purport to contrast two rival ideal-types in designing the criminal process." Id. at 575. This is because, he claims, the due process model is a negative model, and "it is conceptually impossible to imagine a criminal process whose dominant concern is a desire to protect the individual from public officials. In its pure form, it would lead not to an obstacle course, but rather to mere obstacles and no course on which to place the former."
57. Id. Cf. infra part IV (discussing Jareborg's defiensive model).
58. Max Weber, "Objectivity" in Social Science and Social Policy, in The Methodology of the Social Sciences 49, 97-98 (Edward A. Shils & Henry A. Finch trans. and eds., 1949).
59. Id. at 90.
60. Packer, supra note 1, at 154.
61. Id. at 153.
62. Id. Although the models were not intended to be taken in the sense of "Is and Ought," the values which Packer held dear are clear from his son's book Blood of the Liberals.
63. George Packer, Blood of the Liberals (2000).
64. Griffiths, supra note 41, 362 n.14.
65. See also Ashworth & Reedmayne, supra note 27, at 38.
66. Packer was skeptical about the broadening use of the criminal sanction. He argued that it was at odds with the movement of the criminal justice process towards the due process model, and that a more refined approach to the criminal sanction was therefore needed. See infra note 129. However, a person could be skeptical about the use of the criminal sanction and not share Packer's views. They might, for example, argue that there is little point broadening the rise of the criminal sanction unless the criminal justice process is first streamlined, with fewer procedural safeguards.
67. Packer defined reliability as "a high degree of probability in each case that factual guilt has been accurately determined." Pracker, supra note 1, at 164 (emphasis added). The value of reliability thus requires that we look at every piece of evidence which helps determine factual guilt, including improperly obtained confessions that have been verified as true. It is implicit in the distinction between factual and legal gunt that sometimes we should sacrifice reliability and accept the possibility that a verdict is factually inaccurate in order to, c.g., deter abuses of state power.
68. A confression obtained by torture is involuntary, and so may De excluded under the Constitution's due process clauses. It would also be inadmissible under the Fifth Amendment privilege against compelled self-incrimination.
69. Although the example in the main text involves only two or the three values associated with the due process model, the same point applies if we take an example involving equality. A defendant is convicted on the basis of incontrovertible evidence of his guilt, but he did not have legal representation because he could not afford it. According to the dictates of reliability there is no point in spending public money on providing legal representation for a defendant whose guilt is not in doubt. But according to the dictates of equality, all defendants should have access to legal representation regardless or their financial ability and the cogency of the case against them.
70. Packer wrote: "the Due Process Model, although it may in the first instance be addressed to me maintenance or reliable fact-finding techniques, comes eventually to incorporate prophylactic and deterrent rules that result in the release of the factually guilty even in case in which blotting out the illegality would still leave an adjudicative fact finder convinced or me accused person s guilt." Packer, supra note 1, at 168.
71. See also supra note 55.
72. Packer, supra note 1, at 154.
73. Id. at 164.
74. Id. at 177.
75. The label investigative effectiveness perhaps conveys the essence of the concept more clearly than the label investigative efficiency. Nonetheless, the term investigative efficiency will be used in this article in order to maintain the connection with Packer's work. For a definition of investigative efficiency, we may employ Packer's statement That "[b]y 'efficiency' we mean the system's capacity to apprehend, try, convict and dispose of a high proportion of criminal offenders whose offenses become known." Id. at 158.
76. This differs from Packer's definition of reliability, in that he defined reliability as a "high degree of probability in each case that factual guilt has been accurately determined," whereas this definition of investigative efficiency refers to convicting "a high proportion of criminal offenders whose offences become known." Id. at 164, 158.
77. A lack of investigative efficiency will thus result in a "justice gap." The notion or a "justice gap" was influential in the change that occurred in Dutch criminal justice policy in the 1980s. See Andrew Rutherford, Transforming Criminal Policy ch. 3 (1996).
78. Packer, supra note 1, at 160.
79. Id. at 164-65.
80. For example, individuals might be deterred from committing crimes by an onerous penalty scale, even where the criminal justice process is unreliable.
81. Id. at 165.
82. Id. at 160.
83. Id. at 160-61. Packer again uses the word efficiency in a confusing manner. It would not make sense for the word efficiency to be referring simply to the expeditious handling of cases, since Packer's logic here is based on efficiency also involving some degree of reliability.
84. Id. at 205-06.
85. It is assumed here that the screening process comprises part of the criminal justice process. An alternative approach would be to construe the criminal justice process narrowly and hold that it begins only once the screening process is complete
86. Id. at 162.
87. For example, on the issue of electronic surveillance, the crime control model states, "Law-abiding citizens have nothing to fear" Id. at 196.
88. For a similar statement with regard to the power of arrest, see supra note 61.
89. Packer, supra note 1, at 189.
90. See Julia Fionda, Public Prosecutors and Discretion: A Comparative Study (1995) (advancing an operational efficiency model of prosecutorial sentencing). While this bears some resemblance to our operational efficiency ideal-type, Fionda's model bases its demand for administrative efficiency on the pragmatic concern to "control and manage an increasing workload within the constraints of a limited workforce and budget." Id. at 176.
91. What this does not mean, of course, is that everyone who is factually and legally guilty of a crime will emerge from the screening process, since not everyone who is factually guilty will be entered into the screening process in the first place.
92. Packer, supra note 1, at 160.
93. Id. at 163.
94. The investigative efficiency ideal-type is thus an ideal-type in the strong sense since its premise means it could nor sensibly be advanced for practical implementation. By contrast, since the administrative reliability ideal-type is not constructed upon such a premise, its features could theoretically form part of an agenda for practical implementation and it is therefore an ideal-type in the weak sense. See also infra part IV.
95. Packer, supra note 1, at 163.
96. See supra note 55.
97. For example, he wrote of "the distrust of fact-finding processes that animates the Due Process Model," and he explained that the model's "rationale [for excluding improperly obtained confession evidence] is not that the confession is untrustworthy..." Packer, supra note 1, at 164, 191.
98. Id. at 165.
99. Of course, this is not to give a license for delay. But this is very different from the ideal-type operational efficiency model's emphasis on passing the case through the remainder of the criminal justice process as quickly ns possible. Cf. supra note 41.
100. Here the accuracy and trustworthy senses of reliability coincide.
101. Packer, supra note 1, at 179-81.
102. Id. at 190-92.
103. Id. at 196-97.
104. Id. at 200.
105. Id. at 203.
106. Id. at 207-09.
107. The same is true of Packer's description of the due process model's perspective on detention and interrogation after a lawful arrest, id. at 190-92,
108. illegally secured evidence, id. at 200,
109. and on the decision to charge, id. at 207-09.
110. Id. at 179.
111. Id. at 196.
112. Id. at 203.
113. See supra note 55.
114. Packer, supra note 1, at 163.
115. He defined reliability as "a high degree of probability in each case that factual guilt has been accurately determined." Id. at 164 (emphasis added).
116. American Bar Association Standards for Criminal Justice: Prosecution Function and Defense Function, standard 3-3.9 (3d ed. 1993).
117. In re Winship, 397 U.S. 358 (1970).
118. Although Packer ascribed a uniform threshold of probability to the value of reliability, he did implicitly recognize that prosecutors apply a lower threshold than the criminal standard of proof, but without considering the implications this has for his models. Packer, supra note 1, at 160. Note also that it is not only prosecutors and finders of fact in criminal trials that have to make assessments of a case. The police must make an assessment of a case when deciding whether or not to exercise their power of arrest. For example, an officer may arrest without a warrant a suspect whom he has reasonable cause to believe has committed a felony.
119. See supra note 55.
120. The exception is the administrative reliability ideal-type. See supra note 78.
121. The word "ideal" is here being used in the abstract theoretical sense, not the ethical imperative sense. See infra note 105.
122. Note that while an idieal-type in the strong sense could not be regarded as a prescription of what ought to exist, it might be plausible to use it to describe an ideal. Weber gave the concept of a free market as An example of an ideal-type. Weber, supra note 48, at 90. A perfectly free maker cannot be achieved, but moving towards a free market might nonetheless be described as an ideal.
123. Id. at 91-92. The distinction Weber draws here between the abstract theoretical and ethical imperative senses of the word "ideal" is also found in the Oxford English Dictionary's entry for "ideal." Strand B.2 of the definition states that an ideal is "Something existing only as a mental conception," whereas strand B.i.a. states that an ideal is "an object to be realized or aimed at." Oxford English Dictionary 615-16 (2d ed. 1989). The terms "ideal-type" and "non-ideal-type" use the word in the abstract theoretical sense.
124. See supra note 103, infra note 118.
125. Weber wrote: "As fundamental as this distinction is in principle, the confusion of these two basically different meanings of the term 'idea' appears with extraordinary frequency in historical writings." Weber, supra note 48, at 98.
126. Id. at 97-98.
127. Id. at 98.
128. Id. at 97. Weber stated that an ideal-type is a "mental construct [that] cannot be found empirically anywhere in reality."
129. Id. at 90. It follows that if a weak ideal-type is used in evaluative work as a prescription of what ought to exist, and is realized, then it must cease to be an ideal-type (in the abstract theoretical sense).
130. Id. at 98.
131. Nils Jareborg, What Kind of Criminal Law Do We Want?, in Beware of Punishment: On the Utility and Futility of Criminal Law 17 (Anikka Snare ed. 1995).
132. Id. at 20.
133. Id. at 22-23.
134. Jareborg, also insisted that the offensive approach ought not to be regarded as a model, because "important parts of the defensive model are kept or only slightly modified - there is no general rejection of the anchorage in a Rechtstaat ideology... [I]t is not (yet) possible to formulate an offensive model, i.e., to describe the offensive approach in isolation from the defensive model." Jareborg, supra note III, at 24.
135. Id. at 23.
136. Id at 24-25.
137. Id. at 26.
138. Weber distinguished two senses of the word "ideal," one a strictly logical sense, the other an ethical imperative sense. See supra note 105. The expression "non-ideal-type" uses the first sense of the word. Since Jareborg's offensive approach to criminal law policy was an attempt to describe a "strong ideological counter-current," it may be regarded by some as an ethical imperative. But it is a description of an emerging attitude, not a conceptual construct, and so is not "ideal" in the abstract theoretical sense.
139. Jareborg, supra note III, at 21, 24. Cameron argues that "the emphasis in the Swedish system is placed on preventive, legislative safeguards on abuse of rights," later attributing this in part to the fact that the "courts in Sweden ... unreservedly accept the primacy of the priciple of parliamentary democracy." lain Cameron, Protection of Constitutional Rights in Sweden [1997] P.L. 488, 502, 504. It might be argued that this emphasis on preventive, legislative safeguards informs Jareborg's defensive model. The model asserts, for example, that "the point of having a criminal justice system as a response to unwanted behaviour is ... to protect the offending individual from power abuse."
140. Jareborg, supra note III, at 24.
141. Jareborg, supra note 111, at 22.
142. Id. at 25.
143. For example, the due process model stresses the scope for police officers to abuse their power of arrest and employ it in a discriminatory manner. Packer, supra note I, at 179-81. It stresses the possibility of suspects being detained and interrogated improperly.
144. Id. at 190-92. It worries that "an unscrupulous policeman or prosecutor" could use electronic surveillance "to pry into the private lives of people almost at will."
145. Id. at 196-97. It stresses that police officers might resort to illegal searches in order to obtain evidence.
146. Id at 200. And it states that a prosecutor "with nobody looking over his shoulder" might charge a suspect even when there is insufficient evidence.
147. Id. at 207-09.
148. Id. at 165-66.
149. Id. at 165.
150. Id. at 214-18.
151. Id. at 223-25.
152. Id. at 231.
153. Id. at 230-32.
154. Id. at 239. This conclusion, at the end of part two, paved the way for the ultimate argument of the book. In part three Packer went on to argue that the criminal sanction was being resorted to too indiscriminately, which created the situation where "its processes are being forced to conform to values that reduce its efficiency [while] we place heavier and heavier demands on Those processes."
155. Id. at 365. Packer Thus concluded, "The process cannot function effectively unless the subject matter with which it deals is appropriately shaped to take advantage of its strengths and to minimize its weaknesses. The prospect of spending billions of dollars ... on improving the capacity of the nation's system of criminal justice to deal with gamblers, narcotics addicts, prostitutes, homosexuals, abortionists, and other producers and consumers of illegal goods and services would be seen for the absurdity that it is if we were nor so inured to similar spectacles. Our national talent runs much more to how-to-do-it than to what-to-do. We sorely need to redress the balance, to ask 'what' and 'why' before we ask 'how"'
156. Id. at 366.
157. Indeed, immediately after stating that the defensive model is an ideal-type, Jareborg added that "[i]n many respects, it is also meant to be 'ideal"' Jareborg, supra note III, at 20.
158. Id. at 20. By classical criminal law, Jareborg meant the "kind of criminal law that began to dominate in the beginning of the 19th century, especially in what could roughly be described as German- and French-dominated parts of Europe."
159. Id.
160. Packer, supra note 1, at 173.
161. Id. at 243-44.
162. Id. at 239-40.
163. Jareborg, supra note 111, at 25, 26, 27-28.
164. Packer, supra note 1, at 190.
165. The crime control model argues that since "the best source of information is usually the suspect himself," the police should not "be expected to solve crimes by independent investigation alone." Id. at 187. They should therefore be able to "interrogate the suspect in private before he has a chance to fabricate a story or to decide that he will not cooperate."
166. Id. The length of time for which the suspect may be held is "the length of time, given all the circumstances, during which it is reasonable to suppose that legitimate techniques of interrogation may be expected to produce useful information or that extrinsic investigation may be expected to produce convincing proof either of the suspect's innocence or of his guilt." Id. at 188.
167. In re Winship, 397 U.S. 358, 364 (1970). Per Justice Brennan, on behalf of a majority of the Court.
168. See Patterson v. New York, 432 U.S. 197 (1977).
169. In a similar vein, the European Court of Human Rights has accepted that article 6(2), which enshrines the presumption of innocence, does not prohibit the reversal of the burden of proof provided that reverse onus provisions are "[confined] within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence." Salabiaku v. France, 13 E.H.R.R. 379, 28 (1988).
170. See also Andrew Ashworth & Meredith Blake, The presumption of Innocence in English Criminal Law, [1996] Crim. L.R. 306 (finding that 40 percent of offenses triable in the Crown Court in England and Wales place a burden of proof on the defendant). This is in spite of Lord Sankey LC's celebrated description of the presumption of innocence as the "golden thread" of English criminal law. Woolmington v. DPP, [1935] A.C. 462 (H.L.).
171. R. v. R., [1992] I A.C. 599.
172. I Matthew Hale, History of the Pleas of the Crown 629 (1st ed. 1736).
173. Their Lordships did not consider themselves to be applying the law retrospectively, with Lord Keith (with the unanimous support of the House) declaring that "in modern times the supposed marital exemption in rape forms no part of the law of England." R. v. R., [1992] I A.C. 599, 623.
174. The difficulty with this reasoning is that "the [House of Lords] did not hold that Hale had misstated the law ... but that (this must have been on some unspecified day before R had forcible intercourse with his wife in October 1989) the law had changed as no longer compatible with modern conditions." David Ormerod, Smith & Hogan Criminal Law: Cases & Materials 728 (9th ed. 2006).
175. Although the European E.C.H.R., it is submitted that the decision went beyond what the Strasbourg Court described as "evolution, which was consistent with the very essence of the offence." SW and CR v. United Kingdom, 21 E.H.R.R. 363 41 (1996).
176. However distasteful one finds it, before the House of Lords' decision the exception for marital rape existed (albeit subject to some erosion in previous cases). After the decision it ceased to exist. The definition of rape had thus been rewritten. See also R. v. C. (Barry), [2004] E.W.C.A. Crim. 292 (convicting C in 2002 of raping his wife in 1970, at which time they were married).
177. George Packer recalls that his father felt strongly about racial discrimination: "I was fairly alert to the plight of Negroes; the subject was much discussed in our house, in strong moral tones. I gathered that Negroes had been treated unfairly and we owed them something." Packer, supra note 52, at 238.
178. See Packer, supra note 1, at 180 (outlining the due process model's perspective on the police's power of arrest); id. at 239-46 (commenting on the apparent trend towards the due process model).
179. George Fletcher, Basic Concepts of Legal Thought 121 (1996).
180. Griffin v. Illinois, 351 U.S. 12, 19 (1956).
181. Packer, supra note I, at 217.
182. Id. at 231.
183. Id. at 213. The difference of opinion fundamentally flows from the fact that the due process model holds that there should be a right to pre-trial liberty pending a formal adjudication of guilt, id. at 215, whereas the crime control model argues that, since a formal charge "has behind it a double assurance of reliability" (the judgment of the police officer and the prosecutor), then "[f]or all practical purposes, the defendant is a criminal," and so there "is no reason for him to go free."
184. Id. at 211.
185. Id. at 229.
186. Andrew Ashworth, The Criminal Process: An Evaluative Study 29 (2d ed. 1998). Cf. Ashworth & Redmayne, supra note 27.
187. See supra note 129. When Packer arrived at this conclusion, he qualified it by saying," [i]n theory at least." Packer, supra note I, at 239.
188. This presumably alludes to the possible disparity between the "law in the books" and the "law in action." Like the due process/crime control dichotomy, the dichotomy between the "law in the books" and the "law in action" has been challenged by Doreen McBarnet. McBarnet, supra note 32.
189. Packer, supra note I, at 158.
190. Id. at 162.
191. For example, the crime control model insists that the police should have extremely broad powers of arrest since "the dictates of police efficiency" provide sufficient regulation, and that access to a lawyer should be refused because "it is absolutely necessary for the police to question the suspect at this point without undue interference." Id. at 177, 202.
192. The crime control model asserts, for example, that "the innocent have nothing to fear" from broad police powers of arrest, since the dictates of efficiency are sufficient regulation, and that "[l]aw-abiding citizens have nothing to fear" from electronic surveillance since "law enforcement has neither the time nor the inclination to build up files of information about activity that is not criminal." id. at 196.
193. For example, it takes a restrictive view of pre-trial liberty because "[t]he vast majority of persons charged with crime are factually guilty... Just because the assembly line cannot move fast enough for him to be immediately disposed of is no reason for him to go free." Id. at 211.
194. It also encourages guilty pleas because "[i]f the earlier stages of the process have functioned as they should" there should be only a very small number of cases in which there is "genuine doubt about the Ectual guilt of the defendant." Id. at 222.
195. These six methods are: A threat against or a violation of a legitimate interest of value is regarded as a sufficient reason for criminalization; so too is culpability; emphasis shifts from offenses against individuals to offenses against the state machinery or an anonymous public; criminalizations increasingly concern potentially dangerous deeds or deeds which are peripheral to caused harm; crime definitions are linguistically indeterminate; and decriminalizations are rare. Jareborg, supra note III, at 26.
196. The other three methods could also be employed by legislators: Severer legislation can increase repression within the criminal justice process, criminal procedure can be rationalized through new legislation, and legislators can encourage the demonization of offenders.
197. Jareborg himself makes it clear that he opposes the offensive approach. Jareborg, supra note III, at 32-33. As a result, much of his description of the offensive approach is at least impliedly critical. A proponent of the offensive approach would describe its methods and consequences quire differently.
198. A proponent of the offensive approach might also carry out evaluation by studying the effect a piece of legislation has on the crime level. However, teh fact that crime levels are unaffected does nor necessarily mean that the legislation in some way fails to employ the methods of the offensive approach. For example, it might be because inadequate resourcing has hampered the enforcement of the legislation, or because there has been a lack of enthusiasm amongst enforcement agencies for the legislation. Note too that, even if crime levels were to fall, it does not follow that the new legislation is responsible. It would have to be shown that the reduction was caused by the new legislation as opposed to some other factor(s).
199. Packer, supra note 1, at 166.
200. Id. at 158.
201. Griffin v. Illinois, 351 U.S. 12, 19 (1956).
202. Packer, supra note 1, at 165.
203. One might seek to defend Packer's spectrum by arguing that those making the decision to repeal the provision might be primarily concerned with preventing crime. There are two flaws in such reasoning. First, since they do not regard the provision as essential to prevent abuses of state power, those making the decision would not, in their eyes, be prioritizing crime prevention over preventing abuses of state power as Packer's spectrum suggests. Second, while the provision might be repealed to help crime prevention, the provision might equally be repealed in order to help efforts to pursue other values, e.g., efforts to obtain probative evidence which leads to reliable determinations of guilt.
204. Packer, supra note 1, at 154.