Crime Control Versus Due Process

Criminal justice systems are regarded as having two functions, or are supposed to 'deliver' two 'outputs': on the one hand the effective management and control of criminality and on the other, justice. These two 'outputs' do not necessarily co-exist smoothly. Concentration on delivering justice does not necessarily enhance the ability of criminal justice institutions to deliver effective crime control and vice versa. Therefore particular agencies or policies may gravitate towards one or other of these outputs. This is sometimes seen as the contrast between a 'due process' or a 'crime control' orientation

At the present time there is considerable debate about both the crime control efficiency of the criminal justice system (falling clear up rates for crime, problems of dealing with organised crime etc. ) and also its capacity to deliver justice (criticism of proposals to restrict jury trials, the tendency toward 'pre-emptive criminalisation' observable in a number of recent pieces of legislation) The French philosopher-sociologist Michel Foucault wrote about the 'governmentalization of the state' as one of the major developments which distinguish modern industrial societies from their predecessors.

He is talking about a shift from preindustrialized society where the main concern of the ruler was with his personal authority or sovereignty to modern industrial societies where the government is concerned with authority, for sure, but also with the management of society by means of social and economic policy. The distinction can be illustrated by two scenarios: Imagine a small village in, say, sixteenth century Europe. It is market day and peasants and trades people are bringing their wares for sale, setting up stalls etc. Suddenly the king appears with his entourage, en route for somewhere.

His knight rides ahead of his carriage and push villages out of the way. 'Make way for the King! ' they cry, 'Bow as his Majesty passes' they shout, knocking over stalls and sacks of produce as they career through the village. The villagers stop what they are doing and bow to the King's carriage as it passes through. Once the entourage has passed, the villagers pick themselves up, dust themselves down, and carry on with the market. -2- Now imagine the same village (now a small town) today: It is market day and farmers and traders are bringing produce in to their shops and stalls.

Customers are driving in to town from surrounding areas. The multi-story car park is chock a block and the one way system is a nightmare. In the middle of all this the traffic police are everywhere, waving traffic on, prohibiting motorists from parking on yellow lines and threatening them with an instant fine if they don't move on etc. What is the difference between the King and the traffic police? Both are using power and authority (what Foucault calls 'sovereignty') The King however was concerned only with the recognition of his own authority and status.

The peasants had to stop what they were doing, make way for his procession, and bow appropriately. After the King had passed market day continued in the absence of His Majesty. The King was not concerned to use his sovereignty to assist in the running of the market at all. Society (as an economic and social system) runs itself. The traffic police, by contrast, embody what Foucault called the 'governmentalization of sovereignty'. The traffic police act on the authority of the State (which, in most countries has replaced the authority of the Monarch). They can give you a parking fine, arrest you etc.

But the exercise of their power is not directed to the maintenance of their own authority (Bow low, peasants, as Inspector Bloggins of the traffic police passes! ) but rather to the maintenance of an efficient traffic flow on market day. Sovereignty is directed to the management of society and economy: it is 'governmentalized'. Society no longer entirely 'runs itself'. Foucault traces the gradual evolution of this notion of government: basically when Monarchs discovered they could no longer survive just on tithes from the peasantry but realised they had to take steps to encourage trade and commerce.

One of its earliest manifestations was the concept of 'police' which up until the nineteenth century meant keeping society in good order and securing 'the right disposition of things'. This was a much wider process than crime control. -3- What is important is the distinction between government (as Foucault uses the term – as direction and management of social processes to retain them in good working order) and sovereignty as authority and right. It helps us understand the origin of the distinction between due process and crime control gradually becomes secularised and democratised.

The authority of the king is replaced by the authority of government acting in the name of the people whose civil and legal rights must be respected. This is the product of the great revolutions and changes of the seventeenth and eighteenth centuries in Europe. Justice comes to include the right of all citizens to equal treatment before the law, the right to a fair trial, to be innocent until proved guilty 'beyond reasonable doubt' and freedom from arbitrary coercion and surveillance by the state. Crime, in this perspective is no longer simply an affront to the authority of the sovereign.

More Though in criminal, as opposed to civil law crime is still often seen as a violation of the 'Queens Peace'. In a criminal trial, unlike civil litigation, the State is still the injured party at law and the victim merely a witness for the state. Gradually becomes more elaborate and sophisticate as securing the 'right disposition of things' gives way to modern conceptions of social and economic policy. Crime, from this standpoint is no longer simply an affront to the State's authority, or to the rights of the modern citizen to go about their lives unmolested, but it is also inefficient, and disruptive to the working of society.

It must be effectively controlled for these reasons. In modern society sovereignty and government co-exist. Sovereignty is 'governmentalized', that is to say it provides the authority necessary for the effective regulation of society. But, it must do so in a way which-in modern liberal democracies-is consistent with human rights. Effective crime control must have regard for due process and civil rights The competence of the modern state to govern was only established gradually. Effective crime control is one of the most interesting areas of social policy to trace historically.