DESCRIPTIVE OR CRITICAL SOCIALOGY: The Choice Is Yours
Author(s): Mike McConville, Andrew Sanders and Roger Leng
Source: The British Journal of Criminology, Summer 1997, Vol. 37, No. 3 (Summer 1997),
pp. 347-358
Published by: Oxford University Press
Stable URL: https://www.jstor.org/stable/23637945
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BRIT. J. CRIMINOL.
DESCRIPTIVE
VOL.37
NO.
OR CRITICAL
3
SUMMER
1997
SOCIOLOGY
The Choice Is Yours
Mike McConville,
Andrew Sanders and Roger Leng*
David Smith's (1997) critique of The Case for the Prosecution (CFP) appears to relate to a
very different book from the one that we wrote. Although this is not made clear to the
reader, many of his major criticisms relate to his formulations of what he claims to be
our argument. Thus, he takes exception to the 'simple Marxist argument' that 'it is the
economically grounded structural power relations within capitalist society that
determine how the system operates rather than legal rhetoric, legal principles or indeed
the law itself. But these words and this argument are his not ours. Similarly, having
considered our argument about the role of the police in case construction he criticizes
the conclusion that 'criminality is not therefore an objective characteristic of a person'.
But these words and this conclusion are his not ours. The result is a crude caricature of
our theories with scant attention paid to the mass of empirical evidence on which those
theories were founded. As we shall argue below, this caricaturing of our work coupled
with misrepresentations of the views of Herbert Packer and Egon Bittner are used by
Smith as a platform for his own claims about the proper functions of the police and
consequent theories about the sociological analysis of policing. Although we consider
it important to correct the distorted image of our own work which Smith presents,
perhaps the more important function of this response is to expose the defects in the
foundations of Smith's theory of policing and the social values which that theory implies.
In the first part of this response we show how Smith misrepresents our arguments
and perspectives. In the second part, we explore Smith's analytical approach in order
to see how his differences with us have arisen. In the third part we map out his failure
to represent accurately the views of Packer and Bittner and consider the relationship
this has to sociological theory.
What "The Case for the Prosecution' Really Said
There is space for only a few examples of Smith's misrepresentations of our work. The
purpose of doing this is not so much to correct these particular errors as to alert readers
to the way in which Smith distorts evidence and argument. This criticism of Smith's
method is general, applying to the work of others (e.g. Adams 1995) as well as to our
own writing (e.g. Sanders 1985).
His main criticism of us is that we have presented Packer's two models of the criminal
justice process—crime control and due process—as a crude dichotomy rather than as
'intertwined' and that we have judged the police almost entirely from the perspective
Law, University of Warwick, Andrew Sanders is Professor of Law, University of Bristol and
Roger Leng is Reader in Law, University of Warwick. The authors are grateful to Lee Bridges and Satnam Choongh for comments
on an earlier draft.
* Mike McConville is Professor of
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MIKE MCCONVILLE, ANDREW SANDERS AND ROGER LENG
of due process. Furthermore, he claims that we ignore the wider objectives that the
police may have, beyond the processing and conviction of offenders through the
criminal justice process. Due process, he asserts, is an inadequate basis from which to
understand these wider policing functions which 'tend to be beyond the direct control
of the law'.
Yet, in his own summary of our work he notes that:
that this decision
CFP
argues
case
but on
which outcome
[whether or not to prosecute]
depends
For
fits best with policing
goals.
may flow from their concern
prosecution
to maintain
prosecute
against
the wishes of the victim in the case
domestic
assault.
On
has
achieved
been
the other hand,
drunks may be
public
not on the merits of the individual
police
example,
order. This
of a fight in public
about
why they may
but not in the case of a
without charge
released
decisions
explains
the objective
because
by the arrest itself.
Indeed, we point out early on in The Case for the Prosecution that our focus was deliberately
on 'the coercive law enforcement role of the police' rather than on any wider police
mandate, and from this perspective we did indeed note the way in which the police
might use their coercive powers for purposes other than obtaining convictions. For
example, we state that:
The
the law as a control device.
use
police
law per se, but to secure
of
acquisition
broader
information, (p.
objectives:
The
aims
of stops and arrests are often not to enforce the
the imposition
of
order, the assertion
of
authority, the
16)
Similarly, Smith claims that we have misused constructionism, in particular the work of
Erikson and Lemert, who did not 'state that crime or deviant behaviour has no reality
outside
the
of the
minds
law
enforcers
or
social
controllers'.
This
he
contrasts
with
the
'maximal theory of case construction' to which he says The Case for the Prosecution is
inclined and from which it follows that:
Crime
by the activities of the law enforcement institutions, so there is no pattern of crime
is generated
independent
of their activities.
Again, contrast this with our own statement in The Case for the Prosecution-.
We
do
would
not argue
that criminality consists solely in the reaction
deny both
the intentionality of 'primary deviance'
within which action
valid:
that suspicion,
of'criminals',
but are
and
of the police
or
the wider
'the structure of power
society. This
interest'
and
occur.
the major insight of labelling
theorists remains
However,
conviction and criminal self-identity are not objective characteristics
the products
of law enforcers as well.
and
reaction
accusation,
The point is not that there is no behaviour capable of being constructed as crime that
is independent of the activities of law enforcers. On the contrary, our argument is that
such behaviour is far more widespread among the general population than the selective
patterns of law enforcement and the resulting official constructs of crime (e.g. in crime
statistics or even victim surveys, which may also be selective in the 'crimes' and therefore
the 'criminals' that they cover) would lead us to believe. It is the manner in which the
police and the other agencies of criminal justice interact with this mass of'raw material'
that is the very stuff of case construction.
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DESCRIPTIVE OR CRITICAL SOCIOLOGY
Smith's Analytical Approach
While Smith's misrepresentation of our work may not be deliberate, it is closely
connected with his own value systems and analytical method. We shall explore this
through two of his working examples: the theory of case construction; and his
explanatory model of stop and search.
Smith contrasts two views of case construction: the minimal theory and the maximal
theory. On the minimal theory, the police and prosecutors have an important influence
over what evidence is collected, on how it is interpreted, and on the interactions from
which the evidence emerges. For Smith, this version is 'an unexceptionable statement
of the obvious', a 'statement of what everyone already knows'. Smith seeks to
demonstrate the obvious by an example:
If (according
says he
was
question
to the police)
pushed,
one
witness says that Harry jumped
we are not tempted
whether he jumped
or was
pushed,
constraints of contrasting perspectives
each
this minimal
high
degree
to draw the conclusion
and
and
of the window, whereas another
that there is no true answer to the
out
the view that he jumped,
ideologies.
On
or
that he was pushed,
the contrary, it is quite
theory of case construction to believe that a thorough
of certainty that Harry was, in fact, pushed.
are
consistent with
investigation has shown with a
Smith suggests that because a case may ultimately persuade it can in some way transcend
its own process of construction and become a statement of objective fact—'Harry was,
in fact, pushed'. According to this theory, the police 'have an important influence on
the way evidence is generated and selected', but this becomes irrelevant once the
strength of the case is such that it may be treated as objective fact. Our approach would
be that however persuasive, a police case remains a construction, the ultimate strength
of which can be assessed only through an examination of the process of construction
and in particular a consideration of the police role in the generation and selection of
evidence—factors which are normally obscure in the constructive process. Smith's belief
that a police case is capable of achieving the status of objective fact implies that the
process of investigation is thorough-going and introspective. Since there are no
empirical foundations for such a belief, its grounding must be ideological rather than
sociological. We have no quarrel with this but we think it better openly acknowledged
rather than masquerading in the guise of social science.
The second view of case construction offered by Smith is the, so-called, maximal
theory. Under this view, 'all accounts are constructed by particular narrators to suit the
perspectives and objectives that belong to their station in society, and none can be
substantiated by independent or conventionally credible evidence'. The result for Smith
is clear:
So
nobody
can
say that Harry was, in fact, pushed.
They
can
only say: 'My case
is that Harry was
pushed.'
In this account, Smith has both misrepresented what is in CFP and misunderstood one
of its central messages. CFP does not say that accounts cannot be 'substantiated by
independent or conventionally credible evidence'. Rather, what the book seeks to show
is that whether evidence is seen as independent or credible may in itself be the product
of decisions which the police have made. So, to take the example of Harry: the police
may for their own reasons (which Smith elsewhere acknowledges might inform their
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MIKE MCCONVILLE, ANDREW SANDERS AND ROGER LENG
decision-making) decide that Harry was pushed.1 It may then become a police project
to persuade the Crown Prosecution Service (CPS) and the courts that Harry was pushed
and, accordingly, they may seek in the file to discredit the witness who says that Harry
jumped or suppress the evidence of that witness altogether.2
A second insight into how Smith's value-system intrudes into his analytical framework
is provided by the treatment of stop and search. Smith begins by accepting that 'the
behaviour of the police in carrying out stops and searches is influenced very little by
the criterion of reasonable suspicion'. He also accepts that the discretion provided by
law is exercised according to police criteria and that the important question is the nature
and content of these operating criteria. So what are the criteria? On the negative side,
he states that police decisions are not 'irrational or entirely based on stereotypes or
intuitive assumptions that bear no relation to criminal offending'. While Smith is unable
to point to anyone who has claimed that all police decisions can be described in these
ways, he offers no evidence for the implication that none of them can be so described.
But the positive side of his argument is much more significant.
Smith argues that, in carrying out stops and searches, the police are often 'responding
to cues that [are] objectively related to offending when making stop decisions' (emphasis
supplied). For the evidence in support of this, Smith directs us to his work with Jeremy
Gray (Smith and Gray 1983). In assessing police behaviour, Smith and Gray adopted a
narrow interpretation of reasonable suspicion in which 'there must be a specific reason
for suspecting the individual person concerned, and this reason would normally be
connected with the person's behaviour at the time of the immediate circumstances'
(Smith and Gray 1983: 230).3
While most interest has focused on the conclusion of Smith and Gray that the police
had no good reason to stop in one-third of all cases, greater insight into Smith's views
are
revealed
in
the
of
categorization
cases
where
there
was
reasonable
To
suspicion.
what cues did the police respond which commended their action to Smith and Gray as
'objectively related' to the stop decision? The authors helpfully set these out in the
following passage (which omits motorist behaviour):
1.
or moving
quickly.
at night.
about'),
aimlessly ('hanging
very slowly, especially
moving
odd
for
a
man
a
woman
20
circumstances,
Specific
example
yards behind at 3 am.
following
valuable
hand
or
in
a
vehicle
often
to see, say, a television set
is
(it
Carrying
property by
possible
in the back of a car).
Running
2.
3.
Behaving
4.
5.
Being
suspicion
6.
Having
out
on
foot in the small
hours
on its own, but we have
something
in common
of
counted
the morning (this is, of course,
it in some
with the description
the area. (Smith and Gray 1983: 232)
a
very weak
reason
for
cases).
of suspects
in a recently reported
1
crime in
Nothing turns on the actual decision made by the police: they may equally decide that Harry jumped.
See, for an example, CFP (p. 77) case BK-A056 in which a claim of self-defence on the part of a man arrested for assault was
initially undercut by the failure to include in the File the lengthy and violent record of the 'victim*. See also CPF (p. 135) case
CE-A094.
3
They contrasted this with a broader definition under which it would only be necessary to show that there was a higher than
average chance that the person had committed an offence (ibid.).
2
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DESCRIPTIVE OR CRITICAL SOCIOLOGY
Some of these criteria are so lacking in particularity or are so vague that they provide
no foundation for any respectable legal claim relating to reasonable suspicion or for
any valid social scientific claim relating to objective indicators of crime. Thus, if the
legitimacy of official intervention rests upon whether a person is running/moving
quickly/moving very slowly/hanging about/being out on foot in the small hours, there
is need neither for 'reasonableness' nor for 'suspicion'. Put another way, what
possible kind of human behaviour in public falls outside the criteria listed by Smith
and Gray? And if these criteria govern police intervention it is hard to see in a case
where a stop does lead to the detection of a crime, how the criteria could not be 'cues'
which are 'objectively related' to the offending in question. It is in such ways that
underlying ideologies and value choices are disguised by spurious scientistic claims
of objectivity.
As irritating as misrepresentations of our work may be, we would not wish to
underplay the very substantial and significant differences between our respective
approaches which the revealed ideologies of Smith begin to suggest. Smith tends to
dress up these differences as theoretical in nature, having to do with our use of models
of criminal justice and theories of case construction. We would tend to see them more
as differences in political and sociological interpretation and approach to the study of
the police and the criminaljustice system. Put bluntly, it seems to us that Smith is posing,
as an alternative to our own critical examination of police and prosecution practices,
an apolitical, descriptive and uncritical sociology of the police.
Smith accepts that policing is selective, in that it impinges disproportionately on
certain sections of the population, but he sees such selectivity not as a sign of
contructionism in the criminal justice process, let alone of bias or discrimination.
Rather, in Smith's view such selectivity is justified, first, because it accurately reflects the
objective pattern of crime in society (e.g. most of the crime which the police are
organized to deal with is committed by working class male youth and blacks) and,
secondly, because this pattern of policing is dictated by the wider goals that the police
must pursue in society.4
Of course, these arguments beg the question of why, in our society, the police are
organized as they are to deal only with certain types of criminal behaviour and, indeed,
to pursue certain goals over others (e.g. to maintain order rather than to pursue social
justice or equality of treatment). To address this question might lead one into precisely
the type of structural analysis that Smith eschews. Instead, he presents the functions of
the police as beyond question and universal in nature and his approach demands that
the self-proclaimed objectives of the police, and the class and racial biases in police
operations that they throw up, be taken as givens.
The Role of the Police and Models of Criminal Justice
In rejecting the explanation of 'a broad stream of opinion among criminologists' that
selective law enforcement is explicable in large measure by class bias, Smith invokes in
4
It is worth noting here that, in quoting Bittner (1975) to the effect that policing does target the poor, ethnic minorities and the
young as the modern equivalent of the 'dangerous classes' and that 'police work is bound to magnify the divisions in society', Smith
seems to be contradicting his own criticisms of our supposedly 'very simple Marxist argument'.
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MIKE MCCONVILLE, ANDREW SANDERS AND ROGER LENG
his support the views of Egon Bittner (1975). According to Smith, Bittner's alternative
explanation is that:
. .
. the police
concentrate
to be caught, and
because
where
offences which normally involve the culprit trying to flee and
on
catching
they are not going
their abuses.
them may involve physical force. Large
to run away, so the police's
unique
corporations
capacity is not required
are
having
ruled
out
to deal
with
This simplistic and distorted reading of Bittner can be seen by looking at what Bittner
actually wrote. First, he acknowledged that 'race and class bias remain a prominently
troublesome problem in police work* (Bittner 1975, p. xii). Secondly, in noting that the
police were not typically involved in the prosecution of criminally culpable transactions
against provisions regulating the conduct of business and the practices of professions,
he observed that:
'...
justice
the lack
of police
to move
against
participation
people
about
probably
whom
reflects the general
it is believed
not really criminal.' (p. xiii)
reluctance
that though
of our
they have
administration
of
transgressed, they are
After noting that the lack of involvement of the police in these cases was also
probably 'due to the fact that they lack the skill and resources dealing with them
calls for', he advanced the 'simpler and more pointed explanation' that the police
were required where the suspect needed to be caught. Qualified as it was by the
context we have already cited, Bittner was too good a sociologist to leave this
explanation as it stood. His next sentence, which Smith fails to quote or otherwise
acknowledge, adds the general cautionary proviso: 'The distinction involves a gross
typification' (ibid.).
When we turn to the other evidence that Smith cites as to the objective reality of
patterns of criminal behaviour, we find that it is at best open to alternative interpretation
and actually seems to lend greater weight to our arguments that selective policing has
a crucial influence in determining patterns of
officially recognized and sanctioned
crime. His argument is that although, for example, the police
stop and search
disproportionately more black people than white, the fact that about the same
proportion of stops for each group results in arrests shows that the police are not acting
in a discriminatory or irrational manner.
Presumably, if the police were picking unfairly
on blacks, fewer of them who are stopped and searched would be found to be
open to
arrest. Smith leaves out of his argument any consideration of the fact that the vast
majority of all stops do not result in arrests or that arrests resulting from stop and search
may be indicative not of previously existing criminal behaviour but instead arise from
the stop encounter itself.
Be that as it may, if the police are indeed justified, because of higher rates of
offending
in the black community, in
concentrating such policies disproportionately on this
section of the population, the logical expectation would be that a
higher percentage of
their stops of black people would result in arrests than for other
groups. In other words,
because of the supposedly greater frequency of offending in the black
community,
police stops of black people should have a higher 'strike' rate. The fact that the
proportion of stops resulting in arrests across socio-economic groups is so remarkably
similar is therefore prima facie evidence that the pattern of arrests is indeed a function
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DESCRIPTIVE OR CRITICAL SOCIOLOGY
of the pattern of police activity, whatever the underlying incidence of pre-existing
criminal behaviour in these different groups.5 Put another way, if the police were
operating stop and search policies rationally and purely on the basis of probabilities in
obtaining arrests then the fact that equal proportions of stops across different groups
result in arrests should presumably lead them to stop similar proportions of the
members of these different groups.
Even if it were to be accepted that certain groups commit more of the types of crime
to which the police direct their attention, it does not follow that this justifies targeting
or differential policing of these groups. Such policing involves the application of
coercive powers against individuals, such as stop, searches and arrests, not because they
have done anything which gives rise to reasonable suspicion that they have committed
or are likely to commit a criminal offence, but because they belong to racial, age or
socio-economic groups the members of which are perceived to have a
disproportionately high rate of certain types of offending. In other words, unfavourable
treatment is being applied to individuals not because of what they do but on the basis
of their allocation to a particular police category. To endorse such behaviour on the
part of the police as rational comes close to premising, on sociological grounds, a
concept of collective guilt as the basis for the principle determining the deployment of
coercive police powers. It therefore runs contrary not just to notions of due process but
to basic democratic aspirations of equality, fairness and individualized justice from
which due process values themselves emanate.6
Smith, however, does not seek to rationalize the discriminatory application by the
police of their coercive powers solely by reference to their objective of controlling the
perceived incidence of crime through legal processes. Indeed, he is contemptuous of
anyone evaluating policing from such a narrow or legalistic perspective, arguing that
the 'functions of the police are considerably wider than those of criminal process' and
that what 'the police do, even within the relatively narrow sphere of criminal process,
is often influenced by concerns or objectives stemming from their wider functions'.
From this Smith concludes that it is 'inevitable that the police will use the law as a
resource to pursue the objectives that are proper to them'.
It is important to be clear that when Smith speaks of the police having 'wider
objectives connected with resolving conflict and dealing with emergencies in a summary
and authoritative manner' he is not referring only to some non-coercive, service role
that they may perform in society. He quotes Bittner to the effect that it is 'the unique
capacity for the legitimate use of force' that defines the police function in society, and
several of the examples he cites of the non-criminal justice objectives the police may
pursue do involve the use of coercive powers. For example, without critical comment
he notes that:
There is a logical alternative, that the police are remarkably accurate in targeting those sections of the white community
commonly subjected to stop and search, so that the smaller proportion of whites who are stopped is purely a reflection of their
lesser involvement in criminal behaviour. To sustain such an argument, however, it would be necessary to premise that if stop and
search were extended to equal proportions of the white population, the extra stops involved would result in no further arrests.
There is nothing to support this other than conjecture.
6
The point can be illustrated if we imagine what Smith's rational and impartial police officer might say to an innocent young
black man he has stopped who asks, 'Why have you stopped me, officer, what have I done?' Presumably the officer, being honest
as well as rational and impartial, would reply: 'Nothing at all, son. It's because you are black, and as such I'm more likely to discover
a criminal offence by stopping you than if I were to stop a white man.'
5
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MIKE MCCONVILLE, ANDREW SANDERS AND ROGER LENG
.. . interrogation is not just regarded
as an instrument for obtaining
evidence
that will help to secure
conviction: it is also seen as having a symbolic or ritualistic function of its own. The experience
of
arrest and interrogation
be
more
often
traumatic
than
the
down
handed
may
penalty subsequendy
by the court. Thus,
police
arrest and interrogation may be ends in themselves, or may subserve important
of whether the courts convict.
objectives, regardless
He also speaks of police use of arrests 'primarily for harassment' or, more broadly,
to 'ease social strains'.
This raises the question of how, in a democratic society under the rule of law, such
uses by the police of their coercive powers selectively to harass and to mete out summary
punishment to certain sections of the population, are to be adjudged 'legitimate' or
'proper'. At points Smith seems to suggest that the police are justified in their use of
coercive powers insofar as they can get away with it. We are told, for instance, that in
relation to stop and search the legal requirement of reasonable suspicion is no more
than a 'presentational rule' which exists 'to put a gloss on the practice, rather than to
regulate it'. At other times, Smith implies that there are normative limits to the police's
use of coercion (presumably other than those defined democratically through the law),
as when he says that their 'other objectives may sometimes (rightly or wrongly) be
assigned the highest priority'.
It may be that Smith's use of the terms 'legitimate', 'proper', 'rightly and wrongly' is
itself presentational and that as a social scientist he eschews such normative evaluations
in favour of pure explanation. At the level of explanation, we have no difficulty in
relating the police departure from the values of due process (or even crime control) in
the application of their legal powers to their pursuit of other objectives (e.g. the
maintenance of wider social order or political control of certain sections of the
population)
. Nor
would
we
disagree
with
the
proposition
that
crime
control
objectives
(broadly conceived) might be more effectively pursued through other means, such as
crime prevention, opportunity reduction or community building, which do not involve
the use of coercive powers over the citizen. But in a democratic society under the rule
of law, it is difficult to see how the legitimacy and propriety of the use of coercive powers
by an arm of the state is to be judged other than by reference to the purposes of and
preconditions for the use of such powers prescribed by law.7 To allow that coercive
powers may be used to pursue any objective which the police define as proper for
themselves (with or without popular support that may be generated for such activities)
is to justify policing outside the law. To associate either Bittner or Packer with such a
position is to tarnish the reputation of eminent academics.
Bittner, while fully recognizing the 'troublesome problem of race and class bias' was
far from endorsing it. To the contrary, one of his central concerns was to find
ways of
removing it so as to reform the system so that, as he put it, 'instead of being a
government's police it would be a people's police' (p. x). He recognized that the 'ideal
of the civil order for the maintenance of which the police is created is embodied
7
Lest it be suggested that we are singling out the police in this respect, it may be noted that it is a well established
proposition
in constitutional and administrative law that public bodies, such as central
government or local authority, should be limited in their
use of discretionary powers to proper purposes that may be derived from their
legislative source. So, for example, although local
authority and charitable trustees have a wide discretionary power to remove governors of state schools who they have appointed,
the courts have ruled that they may not exercise this power in order to dictate
policy or to undermine the independent role of the
governor.
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DESCRIPTIVE OR CRITICAL SOCIOLOGY
primarily in middle-class existence' so that poor people 'live under the stigma of
opprobrium when they are incapable of, or uninterested in, middle-class aspirations'
and it is these tacit presumptions which 'affect especially the dealings of the police with
young people in blighted areas' (p. xiv). The results for Bittner were only too apparent:
In
actual
fact, these
youngsters are
held
protection
supposed
have
to middle-class
standards
of decency
and
decorum
much
mainly because
they do not benefit from the shield of
of troubles. The
are
intervention afford on occasions
police
stringently than their privileged
more
peers,
which privacy and parental
dominion
over the public
to maintain
no place
of lower class youth who
space to which the presence
a cycle of
inadvertent challenge.
there comes into existence
Thus,
recrimination that tends to set off every encounter
in the direction of troubles
to go, presents
distrust, hostility, and
an
(ibid.)
And in a passage which stands as a direct refutation of Smith's perverse interpretation
of his work, Bittner castigates a class- and race-biased system and sides with those who
want
reform:
It is certainly true that we have
do justice
to the complexities,
inherited a police
staffed by personnel
recruited in ways that fail to
of its task. But it is perhaps
more significant
importance
inherited a form of policing which, while neutral with regard to partisan politics, is not
of bias has
with regard to the distribution of power, wealth, and dignity. That this problem
seriousness,
and
that we have
neutral
of prominence
on the agenda
of police-reform is, in my view, a step forward.
in
made
in
of the problem
are also important. But
in
recruitment
and
training
Changes
recognition
this falls far short of what needs to be done, to reconstruct the original mission of the people's
police
risen to a position
in the way it was projected
by its English
founders a century and
a half ago.
(pp.
xiv-xv)
Smith's apologia for existing police practices as inevitable (Smith's 'natural law' of
'
policing) sits ill with Bittner's reform agenda in which he concluded that . . . the
professionalization of police work is a non-deferrable necessity and every alternative to
it is nothing short of the betrayal of democratic ideals' (Bittner 1975: 75).
Like Bittner, Herbert Packer was not a descriptive sociologist, imprisoned by the
existing system and viewing it in static and uncritical terms. Packer saw in the debate
about the kind of criminal justice system that should prevail a failure to distinguish
carefully between the Is and the Ought and it was precisely to impose some order on
these debates that he constructed his models because, he said, we need to have 'an idea
of the potentialities for change in the system and the probable direction that change is
taking and may be expected to take in the future' (Packer 1968: 152).
Some of Smith's criticisms of CFP stem from a basic misunderstanding of Packer's
models and their role. The models are not, as Smith believes, about the objectives of the
criminal justice process (though, of course, they are linked to them) but the values which
should inform it. As Packer himself put the point:
The
kind of criminal
process
we have
explicitly or
implicitly, in its habitual
to recognise
explicidy
what we need
the value
is a normative model
importantly on certain value choices that are reflected,
fiinctioning. The kind of model we need is one that permits us
depends
choices
that underlie
or models,
(pp.
the details
of the criminal process.
In a word,
152-3)
Contrary to Smith's assertions, CFP does not say that the fundamental goal of criminal
process is or ought to be the pursuit of due process. We accept, along with others, that
the fundamental goal of criminal justice is crime control. Smith fails to understand that
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MIKE MCCONVILLE, ANDREW SANDERS AND ROGER LENG
to accept this is not necessarily to accept the values of the Crime Control Model. To
put it another way, in pursuit of crime control a criminal justice system may reflect crime
control values, due process values or a mixture of both. While it is obvious that the
purpose of having a criminal justice system and punishment is to control crime, the
issue is about finding acceptable means of identifying and convicting those who have
committed crime. It was precisely for this purpose that Packer created the two models
because, in his words, 'they represent an attempt to abstract two separate value systems
that compete for priority in the operation of the criminal process' (p. 153). Although
Smith quotes this part of Packer, he misses the point by saying that 'the CC and DP
models cannot be seen as alternative accounts
This might account for another of Smith's failures to present properly the argument in
CFP. Much of the book is concerned with analysing the nature of criminal justice in terms
of Packer's models. While we do not hide our views about the way legal and law enforcement
personnel operate, our main concern is not to advocate a due process-based system. Rather
it is to show that the system is not, on the whole, due process-based, despite much rhetoric
and many rules to the contrary. Our first task, then, was to describe what Is, while the
Ought question is analytically separate. Thus, when Smith says, for example, that 'the
police inevitably have their objectives' or that 'the police will use the law as a resource',
he is neither saying anything new nor telling us anything to which we would take
exception. The point is that this is not what the law says should happen and it leaves
open a number of policy implications other than, or in addition to, changing the police.
Smith also misunderstands the politics of Herbert Packer. Whereas Smith sees the
existing order as inevitable, and because of that, legitimate, Herbert Packer took a very
different view:
'.
. .
and
[T]he
process
value
kind of model
to describe,
would
choices
that might emerge from an attempt to cut loose from the law on the books
accurately as possible, what actually goes on in the real-life world of the criminal
so subordinate
the inquiry to the tyranny of the actual that the existence
of competing
as
would
be obscured.'8
(Packer:
152)
Putting it shortly, Smith offers a different perspective to that of Bittner and Packer and
has an altogether different agenda. Whereas they seek to analyse the existing system
8
Smith argues that Packer's models can only be understood in the context of his views about the purposes of criminal law and
the justification for punishment. This is not so. The first part of his book dealt with rationales underlying the definition of criminal
ofTences, and looked at when punishment could be morally justified. The final part of his book looks at the difficulties of using the
criminal sanction. In part two he looks at process because he argues that what we can do with the criminal law depends on how
effectively we can operationalize it against those whom we suspect of breaking it. He identified process as giving rise to three
quesuons: (i) the value question of what kind of process we want, (ii) the empirical question of what kind of process we have, and
(iii) the policy question of what kind of process we can realistically have given the competing demands. The last of these quesuons
has already been dealt with in the text, so this note will deal only with the first two. The first reason for constructing the models
was to measure the existing process against them in order to see where on the continuum it rests—which is
precisely what Packer
himself goes on to do. This is what CFP does. There is nothing wrong with looking at it to see to what extent it approximates to
the DPM—that is the dominant ideological position and that is how it is
frequently represented. It is using the models precisely
for what they were intended for—to illuminate what value choices we have made. The second reason was to
'clarify the terms of
the debate' on what the process should look like, although he said he had his
preferences. This does not mean that others cannot
use his models to construct their own arguments about what value choices we should make. If CFP lias a
preference for due process
values there is surely nothing wrong in this provided supporting arguments are put forward. CFP puts forward such
arguments at
both the theoretical and empirical levels.
Smith fails to realize that process raises issues which in many ways are different in kind from the
questions raised by punishment.
Just because the purpose of punishing those who we convia is to control aime (general and specific deterrence etc.), it does not
follow that the process for deciding who has committed a aime has to be struaured on aime control values.
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DESCRIPTIVE OR CRITICAL SOCIOLOGY
and consider its reform potential, Smith describes current practices as if they were
enduring features of the constitutional order. Where they openly acknowledge the gap
between rules and practice, Smith seeks to play this down. As Smith puts it, rates of
police rule-breaking of one procedure in eight are 'fairly low'.9 Where both Packer and
Bittner acknowledged the explanatory force of the, then, newly-emerging empirical
research tradition, Smith offers unsupported and non-scientific excuses for
rule-breaking. Thus, the failure to inform suspects of their rights at the police station
'is likely to be through laziness and boredom, rather than a design to maintain control
of the interrogation'.10 Of course, if Smith is right and officers disregard the law simply
because they are bored or lazy, this supports rather than contradicts our observation
that ultimately the police retain control of encounters which are not susceptible to
regulation by law. Whereas both Bittner and Packer recognized the coercive nature of
certain policing activity, and Bittner explicitly spoke out against coercion even where
its use might be necessary, Smith condones such behaviour by default, even if he stops
short of celebrating its use.11 Where Bittner regretted the deep divisions within society
and deprecated race and class bias, for Smith these are part of a natural order in which
the poor and blacks by their alleged criminogenic behaviour and their propensity to
flight invite the coercive attention of the police who respond only in carefully calibrated,
targeted and condign ways.
The value system to which Professor Smith subscribes would lead to a very different
criminal justice process from that which would flow from the value systems of Herbert
Packer and Egon Bittner. The differences can be elucidated by comparing Smith's
position with the principles (ostensibly endorsed by Smith) which Packer suggested were
common ground between the Crime Control and Due Process Models, and which by
implication Packer would see as minimum requirements for any criminal justice system.
These principles are reproduced below, with italicized additions which endeavour to
capture the caveats which would need to be made in order to accommodate the proper
police function advocated by Professor Smith:
1.
No
one
may be
subjected
to criminal punishment
except
for conduct, provided that young males,
the poor, the scruffy, the 'slag', black people, gays, people who have long hair or unconventional dress and
other out groups as may be defined by the police from time to time may be subject to harassment whenever
the police decide that this is appropriate-,1
9
Would Professor Smith take the same view of rule-breaking if the issue was assaults on citizens, unlawful strip searches, intrusive
and degrading intimate searches, or deaths in police custody?
10
Empirical findings can now be explained by using Smith's Boredom Index (SBI) and should be reinterpreted on this basis.
Thus, the findings of Sanders et al. (1989) that a significant proportion of suspects who requested legal advice and then changed
their mind did so after pressure had been applied by investigating officers require re-examination. They found that the cancellation
rate went up from 12.5 per cent to 19.6 per cent where one 'ploy' was used by the police, and to 38.5 per cent where two 'ploys'
were used. Using the SBI we can now see that where officers are bored the cancellation rate is likely to be of the order of 12.5 per
cent; where they are very bored, it will rise to 19.6 per cent; and where they have absolutely no interest in their job, it will shoot up
to 38.5 per cent. We look forward to seeing the Police National Boredom Map that Professor Smith is doubdess in the course of
preparing.
11
Egon Bittner's position was clearly stated in the following passage: 'The public trust that authorizes and restricts police practices
can be simply stated. A society committed to the achievement of peace by pacific means has created an institution with die monopoly
to employ non-negotiably coercive force in situations where its use is unavoidably necessary. Procedures that go against the ideal
may perhaps be excused occasionally, but they can never be defended.' (Bittner 1975: 122).
I! Smith and
Gray (1983: 233) found that these were the 'cues' which informed police stop and search practices.
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MIKE MCCONVILLE, ANDREW SANDERS AND ROGER LENG
2.
lawmakers
may not be treated as criminal unless it has been so defined by appropriate
it has taken place, except that individuals or groups may be harassed or otherwise the subject of
coercive force whether or not they have committed any offence if this wiU. help ease social strains-,
Conduct
before
3.
role is assigned
to the legislature, secondarily
and
primarily and broadly
to
and
that
the
it
is
understood
that such rules as may be created
courts, except
interstitially
provided
This
definitional
be deemed
the
by
legislature may
by the police to be merely 'presentational' and thus not worthy of respect,
and further that the courts may not be interested in how the police behave nor seek to control their activities,
4.
and further that the police themselves will be allowed to define what conduct should be
proscribed-,
to make
In order
must be
these prescriptions material and not merely formal, the definitions ofcriminal
stated
to leave comparatively
little room for arbitrary
precisely enough
provided always that indixndually and in aggregate the law will be so arranged that the
police will always have power to arrest anyone at any time.
conduct
application,
It is ironic that in his concluding remarks Smith cites Skolnick (1982) on the increasing
difficulty of sustaining 'ideals of legality and due process so that citizens can continue
to make civil libertarian claims'. He also speaks of finding 'ways of achieving crime
control objectives that avoid breaching due process values'. From this the reader can
only assume that, in the last analysis, Smith does believe that legality and due process
are values worth sustaining in a democratic society and that as social scientists we do
have a role in pointing out how the police and the other agencies of criminal justice
depart from them, as we sought to do in The Case for the Prosecution.
References
Adams,
C. H.
(1995),
E.
Bittner,
'In
the Nick:
Conference,
Criminology
(1975),
McConville,
M.,
"Balance",
Rights
and
Suspects'.
Paper
presented
at the British
Loughborough.
The Functions of the Police
A.
Sanders,
and
Leng,
in Modern Society. New
R.
(1991),
The Case
York:
Jason
Aronson.
for the Prosecution.
London:
Stanford
Press.
Routledge.
The Limits of the Criminal Sanction. Stanford:
Packer,
H.
Sanders,
A.
(1985),
Sanders,
A.,
Bridges,
L.,
Stations and the 24
Hour
L.
(1968),
'Class
Bias
in Prosecutions',
Mulvaney,
A.
and
Howard
Crozier,
Duty Solicitor Scheme. London:
University
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G. ( 1989),
Advice and Assistance at Police
Lord
Chancellor's
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Smith, David J. (1997), 'Case Construction and the Goals of Criminal Process', BritishJournal of
Criminology, this issue.
Smith, D.J. and Gray, J. (1983), Police and People in London: Vol. 4, The Police in Action. London:
Policy Studies Institute.
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