Due Process Model

Due process model


Merriam-Webster Dictionary definition:

due process clause (n):

            a clause in a constitution prohibiting the government from depriving a person of life, liberty, or property without due process of law

            such a clause found in the Fifth and Fourteenth Amendments to the U.S. Constitution


The due process model is a type of justice system which ensures that all citizens have some absolute rights and cannot be deprived of life, liberty, or property without appropriate legal actions taking place before any decisions are made.  Within the United States, the due process model refers to the idea that the legal rights of any individual within the criminal justice system are protected.  Especially that an accused person will have complete access to a lawyer within court and to a fair trial.

            The idea of the “due process model”, compared to the term “due process”, was constructed by Herbert Packer, a Stanford University law professor.  He constructed the due process model as a counterproposal to the crime control model.  The due process model consists of the following arguments:

            “… a view of informal, non-adjudicative fact-finding that stresses the possibility of error.”(https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=185992)

            “… implements its anti-authoritarian values involves the doctrine of legal guilt, and the due process models locates at least some of the sanctions for breaching operative rules in the criminal process itself”(https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=185992 )

Historical Context:

The idea of “due process” first came to be in 1215 during the development of the Magna Carta in England.  Within this circumstance, due process meant that the king was required to be supported by some external source when punishing, convicting or imprisoning an individual.  “Due process” was meant to constrain the power held by the king and Parliament, because Parliament was responsible for deciding what the “law of the land” would be.  (https://www.cato-unbound.org/2012/02/10/ryan-williams/substantive-due-process-historical-context)  In other words, no individual can be arrested, taken from their property, or killed without undergoing the due process of law.  

Within the United States of America, the term due process came to be during the drafting of the U.S. Constitution.  New York was the only state that asked Congress to add language in the Constitution about the due process of law.  After ratifying the U.S. Constitution, New York proposed an amendment in 1788 that reads as follows: “[N]o Person ought to be taken imprisoned or disseized of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.”  As a response to New York’s proposal, James Madison drafted a version of proposed amendment that reads as follows:“Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.”(https://www.law.cornell.edu/wex/due_process)  After this, Congress took Madison’s draft into consideration and “due process” is now included in two amendments.  The Fifth Amendment of the U.S. Constitution reads:“No person shall … be deprived of life, liberty, or property, without due process of law.”  

Acceptance/opposing opinions:

            Individuals who do not support the due process model, tend to support the opposing crime control model.  The due process model is typically supported by those who agree with the liberal values and those who support the crime control model agree with conservative values.  The crime control model is built on the following assertions:

“… the crime control model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal justice system.”(https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=185992)          

“The crime control model places heavy reliance on the ability of investigative and prosecutorial officers to elicit and reconstruct a reasonably accurate account of what took place in an alleged criminal event.”(https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=185992 )

In the LSJ 200 course lectures with Professor Steve Herbert, he explained the crime control model to be like a“conveyor belt”.  Meaning that it is a model which is efficient for the criminal justice system, it is quick, and it is predictable. Although this comparison may hold a negative connotation, the crime control model is extremely beneficial for the state and federal governments.  Because the crime control model acts like a “conveyor belt” and functions at a quicker pace than the due process model, the government saves time, effort and money when working through cases in the criminal justice system. Professor Herbert also discussed the way in which the crime control model is centered around the presumption of guilt, it implies faith in the police and prosecutors, and it paints the picture of the state as a protector. In contrast, Professor Herbert explained how the due process model is like an “obstacle course” for the government to find their way through.  By this, Herbert was pointing out the requirements put into place by the due process model as it requires more work and thoughtfulness from the government.  He discussed hoe the due process model’s core is the presumption of innocence and fear of the state punishing the wrong individual.  Those who support the due process model have a fear of the state and of the government, whereas the supporters of the crime control model see the state as their protector and have full trust in the government.  The due process model supporters are afraid of the occurrence of a wrongful conviction and are afraid of an unconstrained, powerful and tyrannical government. One of the main values behind the due process model is the “… concept of limitation on official power.”(https://www.law.gmu.edu/assets/files/academics/schedule/2012/fall/TREYGER_CriminalProc-IA.pdf)  As said by Herbert L. Packer in his article “Two Models of the Criminal Process”, “the combination of stigma and loss of liberty that is embodied in the end result of the criminal process is viewed as being the heaviest deprivation that the government can inflict on the individual.”(https://www.law.gmu.edu/assets/files/academics/schedule/2012/fall/TREYGER_CriminalProc-IA.pdf )  

The acceptance and dominance of either the due process model or the crime control

model depends on the dominating political views within our country at that time.  During the 1960s in the United States, the principles established in the due process model dominated within the criminal justice system.  During the middle of the 1970s and into the early twenty-first century the political climate dominating the United States has favored more conservative ideals and principles.  Therefore, the criminal justice system from the middle of the 1970s and into the early twenty-first century has been dominated by policies and principles coming from the crime control model. Although the opposing models tend to be supported by opposing political parties, the due process model supports and functions equally for all individuals.  No matter which model is dominating basis of our country’s criminal justice system, all individuals within our country will be prosecuted fairly and equally.  


  • If an individual’s home is at risk of foreclosure, the notice of delinquency is required to be sent within a certain amount of time and the individual is legally allowed to pay the entire amount owed before the home is sold to a third party. The individual also has the right to appeal the foreclosure and if they choose to go against the appraisal, other appeal processes are available.(https://definitions.uslegal.com/d/due-process-model/ )
  • Among the due process rights, any individual who is charged with a crime has the right to be notified of the charges against them,the right to a speedy trial and the right to be represented by an attorney if they choose to do so.(https://definitions.uslegal.com/d/due-process-model/ )
  •  The due process rights also support an individual when applying for a government job or when receiving government benefits. “The right to due process means the right to be treated fairly in all your dealings with your government.” The due process rights extend rights for individuals and their families.  “The government must treat you fairly whenever it creates laws about your right to travel, raise a family, or use your property.”(https://www.americanbar.org/…/Grade4-6DueProcess-DoestheConstitutionprotectFairPla…)

Connection to Law, Societies and Justice (LSJ 200):

            The due process model is a fundamental part of the LSJ 200 course.  As we are studying the criminal justice process, it is crucial to understand the two models which compose the criminal justice system within the United States.  When thinking critically about our own opinions and reactions to certain cases, it is extremely helpful to be able to express our opinions by relating to the beliefs of a certain model.  With each case we study, advocates of the due process model and advocates of the crime control model respond in different ways.  Without the rights given to citizens under due process and the due process model, individuals within the criminal justice system would be susceptible to unfair trials, prosecution and incarceration.  The due process model establishes a set guideline of the rights a convicted individual is guaranteed to have.  Without these rights or model, the possibility of a tyrannical and extremely dominant government would be much more possible.  When studying law, societies and justice, it is crucial to understand why there is a criminal justice system within our country and how it functions. Although it is not close to being perfect, the criminal justice system helps keep order within our societies.  “It can be described, but only partially and inadequately, by referring to the rules of law that govern the apprehension, screening, and trial of persons suspected of crime.” ( https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6428&context=penn_law_review